Forest Society Names NH DOT in Legal Action Against Northern Pass

Use of Eminent Domain on Behalf of Northern Pass Prohibited by State Constitution

Jack Savage | February 26, 2016

On Friday, February 26, 2016 the Society for the Protection of New Hampshire Forests filed a motion to include the New Hampshire State Department of Transportation (DOT) in its court action against Northern Pass. In November of last year, the Forest Society sued Northern Pass, LLC, (NPT) in Coos County Superior Court over the company’s attempt to use Forest Society land to build a private transmission line.

“We have a legal and ethical obligation to defend conserved lands like the Washburn Family Forest from private commercial development such as Northern Pass,” said Jane Difley, president/forester of the Forest Society.

Including New Hampshire DOT in the legal action became necessary because of representations made by Northern Pass regarding conversations they claim to have had with DOT, and claims by Northern Pass that DOT has the exclusive authority to issue a license to allow Northern Pass to use the highway right of way across private land for the project. The Forest Society owns the land under and along both sides of the road.

In a November 13, 2015 letter to the state Site Evaluation Committee, the DOT states that:  “The Department has had numerous meetings with representatives of Northern Pass Transmission, LLC and their consultants.  Given the complex nature of this project, the Department anticipates executing a Use and Occupancy Agreement for the entire project within state-maintained rights-of-way.” 

The Forest Society alleges that the excavation and installation of the proposed elective transmission line on Forest Society land will exceed the scope of the Route 3 highway easement. If the DOT were to grant the license it would become an unwitting party to effectively condemning private property rights on Northern Pass's behalf for Northern Pass's benefit contrary to both constitutional and statutory provisions. 

The 2006 amendment of the New Hampshire State Constitution provides :  “No part of a person’s property shall be taken by eminent domain and transferred, directly or indirectly, to another person if the taking is for the purpose of private development or other private use of the property.”  N.H. Constitution, Pt. 1, Art. 12-a.  New Hampshire RSA 371:1 also prohibits the use of eminent domain for transmission projects such as Northern Pass.

Click here to read the legal Motion.