Society for the Protection of New Hampshire Forests v. Northern Pass Transmission, LLC

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0322, Society for the Protection of New
Hampshire Forests v. Northern Pass Transmission, LLC, the
court on January 30, 2017, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiff, Society for the Protection of New Hampshire Forests,
appeals an order of the Superior Court (MacLeod, J.) granting summary
judgment in favor of the defendant, Northern Pass Transmission, LLC. In its
petition for declaratory and injunctive relief, the plaintiff sought to establish
that the defendant’s proposed plan, for which the defendant has not yet
received regulatory approval, to install an underground electrical transmission
line within a state highway easement over a portion of the plaintiff’s land,
exceeds the scope of the highway easement. In granting summary judgment,
the trial court ruled that use of the right-of-way for the electrical line would, as
a matter of law, fall within the scope of the easement. On appeal, the plaintiff
argues that the trial court erred by: (1) declining to address, on ripeness
grounds, whether the proposed installation will result in inverse condemnation,
and not finding that it in fact will result in inverse condemnation; (2) not
finding that a genuine issue of material fact exists as to whether the proposed
installation will exceed the scope of the easement pursuant to the “rule of
reason”; (3) not ruling that the anticipated installation will exceed the scope of
the easement as a matter of law; (4) stating that the easement is not limited to
“viatic” use; (5) allegedly “treat[ing] the dispute as a simple licensing matter”;
and (6) allegedly denying the plaintiff a forum and remedy.

In reviewing an order granting summary judgment, we consider the
affidavits and other evidence, and all inferences properly drawn from such
evidence, in the light most favorable to the nonmoving party. Pike v. Deutsche
Bank Nat’l Trust Co., 168 N.H. 40, 42 (2015). We review the trial court’s
application of law to the facts de novo. Id. If our review of the evidence
discloses no genuine issue of material fact and demonstrates that the moving
party is entitled to judgment as a matter of law, we will uphold the trial court’s
order. Id. An issue of fact is “material” if it affects the outcome of the case
under applicable substantive law. Lynn v. Wentworth By The Sea Master
Ass’n, 169 N.H. 77, 87 (2016).
 The record in this case establishes that the defendant has submitted an
application to the New Hampshire Site Evaluation Committee to install a high
voltage transmission line and related facilities. The proposed project would
consist of a single circuit 320 kV high voltage direct current transmission line
carrying hydroelectric-generated power from the Canadian border to Franklin,
where it would be linked to a 345 kV alternating current transmission line that
terminates in Deerfield. In total, the line would extend 192 miles from the
Canadian border to Deerfield. A portion of the line would be buried
underground within the bounds of existing public highway easements.

The buried portion of the proposed project would include a section of
Route 3 in Clarksville that passes through land owned by the plaintiff. At that
point, Route 3 is a four-rod road, and is maintained as a Class I state highway.
The section of Route 3 at issue was laid out by the selectmen of Clarksville,
Stewartstown, and Pittsburgh in 1931 after finding that “for the
accommodation of the public there is occasion for a new highway.” The
plaintiff’s predecessor-in-title was paid $1,000 for the right-of-way. The
defendant has applied for a license from the New Hampshire Department of
Transportation (DOT) to bury the proposed transmission line between fifty and
seventy feet below the surface of Route 3. See RSA 231:160, :161 (2009).

The plaintiff filed the present action seeking a declaratory judgment that
the proposed use of the right-of-way “exceeds the scope of the public right-of-
way and cannot be lawfully undertaken without [the plaintiff’s] permission,”
and an injunction “preventing [the defendant] from conducting any activities on
[the plaintiff’s property] to advance or implement” the proposed project. The
plaintiff did not specify in its petition any specific harm or unreasonable
burden that the proposed use will impose upon its property. In granting the
defendant summary judgment, the trial court ruled that, pursuant to statute
and longstanding precedent, an underground utility is within the scope of a
public highway easement as a matter of law, and that the DOT has exclusive
authority to determine whether to allow the proposed use.

At the outset, we agree with the trial court that “whether the DOT would
effect a taking of [the plaintiff’s] property if it granted [the defendant] a license
to install the transmission line underneath the stretch of Route 3 at issue is
purely speculative” and, thus, is not ripe for adjudication. “Ripeness relates to
the degree to which the defined issues in a case are based on actual facts and
are capable of being adjudicated on an adequately developed record.” Univ.
Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 455 (2015) (quotation and
brackets omitted). In determining whether a claim is ripe, we evaluate the
fitness of the claim for judicial determination and the hardship to the parties
caused by the court’s decision not to address an issue. Id. A claim is fit for
determination when it raises primarily legal issues, it does not require further
factual development, and the challenged action is final. Id. In evaluating
hardship on the parties, we examine whether the contested action imposes an

2
impact upon the parties that is sufficiently direct and immediate to render the
issue appropriate for judicial review at this stage. Id.

Whether any regulatory action results in an unconstitutional taking of
private property is a question that turns upon the specific facts of that case.
See Burrows v. City of Keene, 121 N.H. 590, 598 (1982). Here, because the
DOT has not yet acted upon any license application, whether its potential
approval of a license might result in inverse condemnation is too speculative a
question to be fit for judicial determination. Moreover, as the trial court
observed, the parties have the right both to an administrative appeal and an
appeal to this court from any adverse licensing decision. See RSA 21-L:14-:15,
:18 (2012 & Supp. 2016); RSA 541:6 (2007). Thus, the decision not to address
whether a future licensing determination might result in inverse condemnation
does not result in hardship. Under the circumstances, we conclude that the
trial court did not err by declining to address the constitutionality of a future
licensing decision by the DOT. We, likewise, decline to address whether any
future license granted by the DOT might result in inverse condemnation.

By contrast, whether the defendant’s proposed use of the public highway
easement falls within the scope of the highway easement, as discussed below,
does not require significant factual development. Thus, although the trial
court observed that “[t]he extent of [the defendant’s] actual use of the public
right-of-way and whether such use exceeds the scope of the public highway
easement is similarly speculative,” we conclude that it properly addressed
whether the proposed use would exceed the scope of the easement.

We have long recognized that public highway easements may be used for
the placement of public utilities, including electrical transmission lines. See
McCaffrey v. Company, 80 N.H. 45, 45-46 (1921); Trust Co. v. Electric Co., 71
N.H. 192, 200 (1901). As we have explained:

In this state we have never considered a highway purpose to be
limited solely to the transportation of persons and property on the
highways. “The public easement includes all reasonable modes of
travel and transportation which are not incompatible with proper
use of the highway by others. It is not restricted to the
transportation of persons or property in moveable vehicles but
extends to every new method of conveyance which is within the
general purpose for which highways are designed.” . . .

In view of the plenary power of the State over its highways, it
may allow the location therein of any facilities not inconsistent
with the superior rights of the traveling public. As science
develops highways may be used for any improved methods for the
transmission of persons, property, intelligence or other means to
promote sanitation, public health and welfare. Such use of the

3
 public highways constitutes a proper highway purpose even
though it may be new and is subordinate to the primary use of the
highways for the traveling public.

Opinion of the Justices, 101 N.H. 527, 530 (1957) (quoting State v. Scott, 82
N.H. 278, 279 (1926)) (citations omitted).

Thus, in King v. Town of Lyme, 126 N.H. 279 (1985), we summarily
rejected the plaintiff’s argument that “a utility easement is not a proper
highway use in a rural area,” id. at 284, and observed that, because “the
installation of utility facilities is a proper highway use, the use of a highway for
such facilities does not constitute an additional servitude which would require
the payment of damages to abutting landowners,” id. at 285. We decline the
plaintiff’s invitation to disregard King as mere dicta. To the contrary, it is
consistent with longstanding New Hampshire law.

Similarly, we long ago recognized that “[w]hether the fee of the street be
in the municipality in trust for the public use, or in the adjoining proprietor, it
is, in either case, of the essence of the street that it is public, and hence under
the paramount control of the legislature as the representative of the public.”
State v. Kean, 69 N.H. 122, 128 (1896). Thus, we have observed that in RSA
231:160, the legislature has “grant[ed] the authority to erect utilities and
specifie[d] that utility facilities may be installed or erected ‘in any public
highway,’” while in RSA 231:161, it has “set[] out the procedure by which a
person makes application for a permit or license to erect such facilities in ‘any
such highway.’” King, 126 N.H. at 284. RSA 231:160 specifically provides:

Telegraph, television, telephone, electric light and electric
power poles and structures and underground conduits and cables,
with their respective attachments and appurtenances may be
erected, installed and maintained in any public highways and the
necessary and proper wires and cables may be supported on such
poles and structures or carried across or placed under any such
highway by any person, copartnership or corporation as provided
in this subdivision and not otherwise.

Under RSA 231:161, I(c), “[a]ny such person, copartnership or corporation
desiring to erect or install any such . . . conduits, cables or wires in, under or
across any” class I state highway “shall secure a permit or license therefor” by
submitting a petition with the commissioner of the DOT, “who shall have
exclusive jurisdiction of the disposition of such petitions.”

We conclude that use of the Route 3 right-of-way for the installation of
an underground high voltage direct current electrical transmission line, with
associated facilities, falls squarely within the scope of the public highway
easement as a matter of law, and that such use is within the exclusive

4
jurisdiction of the DOT to regulate. Through RSA 231:160 and RSA 231:161,
the legislature has definitively found, consistent with our case law, that the use
of highway easements for utility transmission lines is a reasonable use of the
easement.

We also conclude that, upon this record, there is no genuine issue of
material fact. The mere fact that the public utilities regulatory environment
may have changed since 1931, and that the defendant may profit from the sale
of electricity transmitted through the proposed line to out-of-state buyers, does
not create a genuine issue of material fact as to whether use of the right-of-way
for an underground electrical transmission line is within the scope of the
highway easement. Cf. King, 126 N.H. at 284 (finding argument that electrical
utility was not proper use of public highway in rural area to be without merit
based upon RSA 231:160 and this court’s case law). Nor does the record
provided on appeal contain any evidence, by affidavit or otherwise, establishing
how the proposed use of the highway easement will specifically harm or
otherwise unreasonably burden the plaintiff’s property beyond the burden
already created by the presence of Route 3, or any affidavit “showing
specifically and clearly reasonable grounds for believing” that the plaintiff will
be able to produce such evidence at trial. RSA 491:8-a, II (2010); see Heartz v.
City of Concord, 148 N.H. 325, 332 (2002); Lussier v. N.E. Power Co., 133 N.H.
753, 758 (1990). Because use of the easement for an underground electrical
line falls within the scope of the public highway easement, because there is no
dispute that the 1931 highway layout created a public highway easement, and
because there is no evidence that the proposed use will unreasonably burden
the plaintiff’s property, there is no need to apply the “rule of reason.” See
Heartz, 148 N.H. at 331-32; Lussier, 133 N.H. at 757-58.

We reject the plaintiff’s argument that RSA 231:167 (2009), which
provides that “any person . . . damaged in his estate by . . . the installation of
any such underground conduits or cables or by installing any wire . . . or other
apparatus in or under the highway . . . may apply to the selectmen to assess
his damages . . . [in the manner] provided [for] in the . . . laying out [of]
highways,” is inconsistent with this analysis. As the defendant correctly
observes, this provision “presupposes that utilities are within the scope of the
public highway easement,” and “merely recognizes that there may be instances
when persons . . . may incur some impact or injury in connection with a
utility’s use of the easement, . . . and provides a statutory remedy in those
instances.” See Darling v. Company, 74 N.H. 515, 516 (1908) (noting that
predecessor to RSA 231:167 applied “only to acts done by virtue of a license”
and provided for “compensation for injuries done to property . . . by virtue of a
license” to install a utility in a public highway). As noted above, the plaintiff
has not offered proof in the summary judgment record that the proposed
project will specifically harm its property.

5
 Likewise, we reject the plaintiff’s arguments that the trial court treated
the dispute as a “licensing matter,” and denied the plaintiff a forum and a
remedy. To the contrary, it addressed, and properly rejected, the merits of the
plaintiff’s argument that use of the Route 3 right-of-way for the proposed
project was beyond the scope of the public highway easement, and it correctly
declined to address whether the proposed project will serve the public good
because that question is for the DOT to decide in the first instance. See RSA
231:161, I(c), II; Kean, 69 N.H. at 128. As noted above, the plaintiff will have
an opportunity to challenge any “public good” licensing determination rendered
by the DOT. See RSA 21-L:14-:15, :18; RSA 541:6.

Finally, we reject the plaintiff’s argument that the trial court erred by
stating that “a public highway easement is not limited solely to ‘viatic’ use.”
Rather, it properly rejected the plaintiff’s argument that a highway easement is
“a right-of-way for ‘viatic’ use only – in essence, for passage over the land,” and
that any other use necessarily “exceeds the scope of the easement.” As
discussed above, the plaintiff’s claim that use of a public highway is limited to
“passage over the land” is contradicted by well-established New Hampshire law.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

6