THE STATE OF NEW HAMPSHIRE SUPREME COURT 2010 TERM DOCKET NO THOMAS MORRISSEY, et al., TOWN OF LYME, et al.

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT 2010 TERM DOCKET NO THOMAS MORRISSEY, et al., v. TOWN OF LYME, et al. RULE 7 MANDATORY APPEAL FROM DECISION OF THE GRAFTON COUNTY SUPERIOR COURT APPELLANTS REPLY BRIEF Gregory E. Michael, # 1747 Christopher G. Aslin, # Bernstein, Shur, Sawyer & Nelson, P.A. P.O. Box 1120 Manchester, NH gmichael@bernsteinshur.com Attorneys for Appellant

2 TABLE OF CONTENTS Table of Authorities... ii Statement of the Case and Facts... 1 Argument... 1 I. The Town Mischaracterizes the Central Issue on Appeal Whether the Town s Unilateral Acts In Installing Beaver Pipes and Breaching Beaver Dams Constituted a Private Nuisance By Unreasonably Interfering With the Appellants Use and Enjoyment of Their Properties II. The Town Misstates the Relevance of the Natural Mean High Water Level Established by the New Hampshire Department of Environmental Services III. The Town s Assertion That the State Delegated Authority to Control the Water Levels of Post Pond to the Town is Incorrect IV. The State s Attempt to Reconcile the Inherent Conflict Between R.S.A. 210:9 and N.H. Admin. Rule Env-Wt (j) Is Unavailing, and Appellants Petition Should Reasonably Be Construed to Include a Request for Declaratory Judgment Conclusion... 9 Oral Argument i

3 TABLE OF AUTHORITIES Cases Brouillard v. Gov. & Council, 114 N.H. 541 (1974)... 8 Dinsmore v. Mayor & Aldermen, 76 N.H. 187 (1911)... 8 Guy v. Comm r, New Hampshire Dept. of Ed., 131 N.H. 742 (1989)... 8 In re Sawyer, 161 N.H. 11 (2011)... 2, 4 Robie v. Lillis, 112 N.H. 494 (1972)... 2, 3, 4 State v. George C. Stafford & Sons, Inc., 99 N.H. 92 (1954)... 4 Treisman v. Kaman, 126 N.H. 372 (1985)... 3 Statutes N.H. R.S.A. 210:9 (2008)... 8, 9 N.H. R.S.A. 482: N.H. R.S.A. 482: N.H. R.S.A. 482-A: N.H. R.S.A. ch. 212-A... 9 N.H. R.S.A. ch. 482-A... 9 N.H. R.S.A. ch. 483-B... 9 Rules N.H. Admin. Rule Env-Wt (j)... 8, 9 ii

4 STATEMENT OF THE CASE AND FACTS The Appellants hereby incorporate by reference the Statement of the Case and Facts set forth in their opening brief. ARGUMENT I. The Town Mischaracterizes the Central Issue on Appeal Whether the Town s Unilateral Acts In Installing Beaver Pipes and Breaching Beaver Dams Constituted a Private Nuisance By Unreasonably Interfering With the Appellants Use and Enjoyment of Their Properties. Rather than address the actual issues raised on appeal by the Appellants, the Town attacks an alternate straw man version of the Appellants argument. From the very first sentence of its brief the Town characterizes the central issue on appeal as whether a littoral and/or riparian owner has a property right in the water level of a great pond continuing to be maintained at the level that was created by a beaver dam. Brief of the Appellee/Respondent, Town of Lyme (hereafter Town s Brief ) at 2. The Town s straw man argument is ironic as the Town itself, through its Water Policy, its actions, and its arguments before this Court, claims the right to maintain a water level in Post Pond that is created by a beaver dam. 1 Moreover, the argument is inequitable; the Town asserts that the Town, and the Town alone, is permitted to establish the water level of Post Pond by manipulating beaver dams regardless of the impact on the rights of abutters and other littoral owners. The Town s straw man argument attempts to divert attention from the Appellants actual issues presented on appeal; namely, whether the Town s unilateral acts in installing beaver pipes and breaching beaver dams without notice to abutters or proper permits caused a private 1 The Town has not advocated for the complete removal of beaver dams in Clay Brook. Instead, the Town seeks to control the water level of Post Pond by manipulating the effective height of beaver dams in Clay Brook through partial breaches and installation of beaver pipes in the beaver dams. App. at 27 28, Consequently, the Town s desired outcome relies on a water level in Post Pond created by beaver dams. 1

5 nuisance by unreasonably interfering with the Appellants use and enjoyment of their properties through an artificial lowering of the waters of Post Pond and the Clay Brook Wetlands. See Appellant s Brief (hereafter Opening Brief ) at The Town pointedly ignores Appellants recitation of their specific property rights affected by the Town s intentional destruction of beaver dams and installation of beaver pipes in beaver dams. 2 Appellants specifically alleged fee interests in portions of the affected Clay Brook Wetlands, as well as littoral and aesthetic rights to the use and enjoyment of the waters in and around Post Pond. See Opening Brief at 9, Moreover, the Appellants set forth in detail how these specific identified property interests were interfered with by the Town s intentional lowering of the waters of Post Pond and the Clay Brook wetlands by breaching beaver dams and installing beaver pipes in beaver dams. Id. at 9, The Appellants need show nothing more to survive a motion to dismiss for failure to state a claim. See In re Sawyer, 161 N.H. 11, (2011). Under controlling New Hampshire law, the central legal question at issue on Appellants private nuisance claim is whether the Town s interference with the Appellants rights is outweighed by the utility of the Town s actions. Robie v. Lillis, 112 N.H. 494, 496 (1972) ( The proper consideration of all the relevant circumstances involves a balancing of the gravity of the harm to the plaintiff against the utility of the defendant s conduct, both to himself and to the community. ). This is an inherently fact-driven analysis, and the Superior Court should have allowed Appellants case to go forward for development of the facts and application of the 2 Contrary to the Town of Lyme s suggestion that Appellants have only challenged a single breach of a single beaver dam, see Town s Brief at 3, fn.3, Appellants pleaded multiple breaches of beaver dams in the Clay Brook Wetlands, as well as the installation and subsequent lowering of multiple beaver pipes through beaver dams in the Clay Brook Wetlands. See Opening Brief at

6 balancing test. 3 The Superior Court was apparently misled by the Town s straw man argument, and erroneously failed to perform the proper analysis under the Robie balancing test. The straw man argument is attractively simple, but legally erroneous. II. The Town Misstates the Relevance of the Natural Mean High Water Level Established by the New Hampshire Department of Environmental Services. Central to the Town s argument is a misperception of the relevance of the Natural Mean High Water ( NMHW ) level established by the New Hampshire Department of Environmental Services ( DES ). As stated in the Town s Brief, NMHW is a measure of the historic high water level that is consistent enough through the years to leave a lasting, measurable impact on the surrounding properties, and is based on the natural, unaltered condition of the lake. Town s Brief at 13 (quoting Letter from Thomas S. Burack, Commissioner, New Hampshire Dept. of Environmental Services (March 24, 2011)). 4 The Town is correct in pointing out that the day-today water level of Post Pond may fluctuate naturally based on weather conditions and other factors. Town s Brief at 13. However, this fact is irrelevant to the legal issues presented on appeal. NMHW, as determined by DES, establishes the legal property boundary between the State s ownership of the lake bed under Post Pond, and the private property of littoral owners on Post Pond, including the Town. State v. George C. Stafford & Sons, Inc., 99 N.H. 92, As set forth in the Opening Brief, the Town s breaches of beaver dams and installation and lowering of beaver pipes were performed in violation of numerous state statutes and regulations. Opening Brief at Evidence that the Town s actions constituted violations of statutes and/or regulations weighs strongly against a finding of reasonableness, Treisman v. Kaman, 126 N.H. 372, 375 (1985), significantly tipping the Robie balancing test toward a finding of an unreasonable interference with the Appellants use and enjoyment of their properties. 4 The quoted letter was appended to the Town s Brief as Exhibit A at page 25. While this letter is new evidence not presented to the Superior Court or part of the record on appeal to this Court, the Court may take judicial notice of the letter as a public document. 3

7 (1954). Moreover, NMHW is the only legally established natural water level of Post Pond, 5 Appendix to the Appellant s Brief (hereafter App. ) at 17, 9, and for purposes of a motion to dismiss is presumptively the natural level of the Pond as pleaded by the Appellants. In re Sawyer, 161 N.H. at Contrary to the Town s reformulated version of the Appellants claims, Appellants do not assert a right to maintain the water level of Post Pond at NMHW. Town s Brief at 13. Rather, Appellants challenge the Town s right to artificially lower the water level of Post Pond below NMHW without notice to affected parties, without proper permits from the State, and without any reasonable balancing of abutters interests as required by Robie. There is no such unrestricted right for the Town or any littoral owner of Post Pond. Indeed, when another littoral owner on Post Pond previously sought to lower the water level of the Pond below NMHW, the Town advanced an argument diametrically opposed to its current position. In its pleadings in the case of Loch Lyme Lodge v. Town of Lyme and State of New Hampshire, Grafton Superior Court Docket No. 04-E-0167, the Town argued that it has no legal authority whatsoever to manipulate the water level of Post Pond by destroying beaver dams until the Pond water level exceeds the level of the mean high water mark. App. at 20, 28. The Town was correct in its legal analysis in the Loch Lyme Lodge case, that a right to destroy beaver dams pursuant to R.S.A. 210:9, II, arises when water impounded by a beaver dam threatens damage to private property. Because the Town (or any littoral owner) holds no 5 The Town references the natural low water mark, Town s Brief at 13, suggesting that this is what the water level of Post Pond would be if the beaver dams did not exist. No such beaverless water level has been established in this case, nor is there any established legal precedent, rule, statute or method of determining the beaverless level of Post Pond, where it is undisputed that Post Pond s water level is, and has been for decades, dependant on beaver dams in Clay Brook. A theoretical natural low water level for Post Pond is of no relevance to the issues presented on appeal. 4

8 property on Post Pond below NMHW, no property damage can be threatened until the water level exceeds NMHW. 6 Now that it is the Town that seeks to control water levels in Post Pond, rather than an abutting littoral owner, the Town has reversed its belief that it had no legal authority whatsoever to manipulate water levels below NMHW and now argues that is has complete, unlimited and unilateral authority to establish any water level it desires between NMHW and some hypothetical beaverless low water level. The Town s attempt to invent an unreasonable burden where none exists is similarly unavailing. The Town contends that Appellants unreasonably seek to compel the Town to maintain the waters of Post Pond at a particular level, namely NMHW. Town s Brief at 12. Appellants make no such claim. Quite to the contrary, Appellants seek to prohibit the Town s activities (as expressly contemplated by the Town s Water Release Policy) that artificially lowered and maintain the waters of Post Pond at a level more than one foot below NMHW. There is no burden on the Town in prohibiting it from breaching beaver dams or installing beaver pipes when the water level is at or below NMHW. Unlike the owner of a man-made dam that has artificially raised water levels above NMHW, the Town is not responsible for the creation or maintenance of the naturally-occurring beaver dams in Clay Brook. Consequently, Appellants do not claim that the Town has any obligation to maintain the water level of Post Pond at or 6 It must be noted that Appellants Rogers and Sears, as well as the Town, do own land under the Clay Brook Wetlands that lies below NMHW. The key distinction is that this land has traditionally been submerged wetlands, and, rather than being damaged by flooding, this land is damaged by excessive lowering of the water level, thereby draining jurisdictional wetland property and creating thousands of square feet of mud. Jurisdictional wetlands are protected by statute, see R.S.A. ch. 482-A, and draining of thousands of square feet of jurisdictional wetlands is not typically permitted without a wetlands permit from DES. 5

9 above NMHW, just as this Court has determined that man-made dam owners have no obligation to maintain artificially created water levels above the natural conditions. 7 Nor do Appellants assert that the Town a single littoral owner on Post Pond bears liability for every drop of the waters of Post Pond below NMHW. Appellants seek no recourse against the Town for natural fluctuations in the water level of Post Pond. Rather, Appellants seek redress only for the consequences of the Town s intentional acts that have resulted in a sustained, artificial water level that has interfered with the Appellants right to the use and enjoyment of their properties and their littoral rights to Post Pond. The Town s attempt to avoid liability for the consequences of its intentional acts by claiming a legally unsupported unilateral right to manipulate the water level of Post Pond between some undefined beaverless water level and NMHW, while denying this same right to other similarly situated littoral owners, cannot stand. The fact that beaver dams are involved in no way gives the Town special rights over the other littoral owners of Post Pond, nor obviates the Town s unreasonable interference with the Appellants use and enjoyment of their properties. III. The Town s Assertion That the State Delegated Authority to Control the Water Levels of Post Pond to the Town is Incorrect. In its brief to this Court, the Town raises a new argument that was not raised before the Superior Court and that did not form the basis of the Superior Court s order dismissing the Appellants claims. The Town now argues that the State delegated its exclusive authority to 7 The Town presents a false choice in footnote 7 of its brief, arguing that it must balance its alleged duty to let the beaver dam remain in place until the water level reaches the NMHW with its potential duty not to allow the dam to remain if the impounded water rises above the NMHW so as to trespass or cause a nuisance by flooding the littoral properties. Town s Brief at 11, fn. 7. First, the Town has no duty not to allow the dam to remain if the impounded water rises above the NMHW. Rather, it has an admitted right to take action only if or when the impounded water rises above the NMHW level. Moreover, the Town s original policy of installing beaver pipes to maintain the water level at NMHW effectively prevented flooding of the littoral properties without creating a nuisance by artificially draining Post Pond and the Clay Brook wetlands. 6

10 control the water levels of Post Pond to the Town. Town s Brief at This argument is both factually misleading and legally unsupported. The Town relies on a letter from New Hampshire Fish & Game Commissioner Glenn Normandeau, dated February 15, 2008, granting the Town a special permit to install beaver pipe(s) and to breach beaver dams as may be required to manage water levels in Post Pond at the 2.0 foot level on the local gauge. 8 Town s Brief at 14, fn. 8. The Town fails to mention that in a letter to the Town dated January 16, 2009, Commissioner Normandeau expressly rescinded the portion of his February 15, 2008 letter that specifies the elevation of 2.0 on the local gauge thereby rescinding any purportedly delegated authority to specifically control the water level of Post Pond. App. at 36, 139. Even setting aside the fact that N.H. Fish & Game rescinded its purported authority to control the water level of Post Pond, N.H. Fish & Game does not have the authority to set the water level in a great pond, and, therefore, could not have delegated such authority to the Town. By statute, the authority to investigate and set the water level in a great pond by making a determination of NMHW is vested in DES, not N.H. Fish & Game, pursuant to R.S.A. 482:4 and R.S.A. 482-A:21, I. In 2004, DES made a determination of the NMHW level for Post Pond. App. at 17, 9; 19, 26. The town has no authorization or permission from DES to establish an artificial water level below NMHW. Moreover, in June 2005, DES specifically declined to revisit its determination of NMHW and conduct a Lake Level Investigation under R.S.A. 482:79. Id. at 17, 10. Consequently, the Town s new argument that it is the delegatee of the State s authority to manage the water level of Post Pond is both factually and legally incorrect. 8 By February 2008, the Town had already installed three beaver pipes in beaver dams in Clay Brook. App. at 20 21,

11 IV. The State s Attempt to Reconcile the Inherent Conflict Between R.S.A. 210:9 and N.H. Admin. Rule Env-Wt (j) Is Unavailing, and Appellants Petition Should Reasonably Be Construed to Include a Request for Declaratory Judgment. After a lengthy analysis of mandamus and declaratory judgment actions in New Hampshire, 9 the State briefly reaches the substance of the issue and asserts that R.S.A. 210:9 and Env-Wt (j) can be read harmoniously. The State s argument, however, misinterprets the relevant statutory language and fails to save Env-Wt (j) from its inherent conflict with R.S.A. 210:9. The State contends that the only conceivable regulatory overlap between Env-Wt (j) and RSA 210:9, II, would be a situation where RSA 210:9 permitted the removal of [a beaver] dam, but the manner of the removal required a wetlands permit application or notification, because the notwithstanding language at the beginning of RSA 210:9 would be triggered, and the beaver dam removal would be restricted under Env-Wt (j). Memorandum of Law for New Hampshire Department of Environmental Services and New Hampshire Fish and Game Department at 14, fn. 5. Respectfully, the State has reversed the meaning of the notwithstanding clause in R.S.A. 210:9. The notwithstanding clause in R.S.A. 210:9 negates the effect of any... rule of... the department of environmental services by allowing the destruction of beaver and beaver dams... to protect property... from damage or submersion... notwithstanding the restrictions of Env-Wt (j). R.S.A. 210:9, II (2008). Thus, when the specific conditions enumerated in R.S.A. 210:9, II are met, the restriction set forth in Env-Wt (j) do not apply. The fact that Env-Wt (j) purports to allow the destruction of beaver dams without a 9 The State s argument that Appellants failure to file their Petition in Merrimack County forecloses this Court s ability to treat the Petition as including a request for declaratory judgment against the State elevates form over substance and is unavailing. It is long-standing practice in New Hampshire to treat illpleaded requests for mandamus as petitions for declaratory judgment. See Guy v. Comm r, New Hampshire Dept. of Ed., 131 N.H. 742, 747 (1989); Brouillard v. Gov. & Council, 114 N.H. 541, (1974) (citing Dinsmore v. Mayor & Aldermen, 76 N.H. 187, 190 (1911)). Moreover, the Appellants could, of course, file a separate petition in Merrimack County and move to consolidate the two actions. 8

12 DES permit regardless of whether the requirements of R.S.A. 210:9, II have been met demonstrates an irreconcilable conflict between the rule and the statute s general prohibition on the removal of beaver dams without a special permit. See Opening Brief at As set forth in the Opening Brief, Env-Wt (j), as applied in this case, is further in conflict with several other statutory schemes, including the Wetlands Act, R.S.A. ch. 482-A, the Comprehensive Shoreland Protection Act, R.S.A. ch. 483-B, and the Endangered Species Conservation Act, R.S.A. ch. 212-A. Id. at Due to the significant conflict identified between department rules and state environmental protection statutes a conflict that is not limited to the particular circumstances of this case it is in the interest of justice for the Court to consider the Petition as including a request for declaratory judgment and to reach this important issue. To the extent that the Court remands Appellants nuisance claim to the Superior Court, the proper interpretation and interrelation of the relevant department rules and statutes will be an important part of the Superior Court s analysis of the case. Considerations of judicial economy militate toward retaining the Appellants declaratory judgment claim against the State so that the State will have the opportunity to participate in continued proceedings before the Superior Court. CONCLUSION For all of the foregoing reasons, Appellants respectfully request that this Honorable Court reverse the decision of the Superior Court that dismissed Appellants private nuisance and takings claims against the Town; declare that N.H. Admin. Rule Env-Wt (j), as interpreted and applied by DES, is invalid; and declare that the Town s conduct in installing beaver pipes and breaching beaver dams without a permit and without notice to the Appellants was a violation of R.S.A. 210:9, R.S.A. 482-A:3, R.S.A. 483-B:5-b, and/or R.S.A. 212-A:7. 9

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