Forest Society Takes Northern Pass Property Rights Lawsuit to Supreme Court

Notice of Appeal Filed

Jack Savage | June 17, 2016


Concord, NH June 17, 2016—As part of its ongoing fight to defend conserved lands from improper private commercial use, the Society for the Protection of New Hampshire Forests (Forest Society) today filed a Notice of Appeal with the New Hampshire Supreme Court in its lawsuit against Northern Pass Transmission. The appeal addresses questions that the Superior Court left unanswered in last month’s decision to grant Northern Pass a Motion for Summary Judgment in the lawsuit.

“We believe strongly that the Superior Court erred by not getting to the root of the private property rights issue in its decision,” said attorney Tom Masland of Ransmeier & Spellman, representing the Forest Society. The Forest Society filed suit against Northern Pass in November 2015.

Northern Pass, as an elective transmission project that has not been determined to be necessary, is legally prohibited from using the state’s power of eminent domain.

The Superior Court decision, issued by Coos County Superior Court Justice Lawrence McLeod, called the Forest Society’s concerns over the proposed use by Northern Pass of the Washburn Family Forest in Clarksville “purely speculative” because a license for such use hasn’t yet been granted and declined to address whether or not such use constitutes a “taking” by eminent domain.

“The NH Department of Transportation (DOT) does not have the authority to determine the property rights of landowners affected by a project like Northern Pass,” Masland said. “By failing to address that issue now—nor allowing the issue to be litigated—landowners like the Forest Society would be left with no remedy. This is a complex case, and important issues remain unresolved, including the complexities and ramifications of declaring DOT the sole authority to resolve all matters involving the use of roads.”

The Forest Society’s Appeal asks the Supreme Court to examine the issue of the use of the highway rights of way – where abutting owners of land own beneath the road -- for elective, private, for-profit, transmission projects, not intended to “keep the lights on” in this state, and whether it is appropriate for “an extension cord” between Quebec and Southern New England.  The Superior Court left this unresolved as it did not address that part of the argument.

“As a land trust, we have a legal and ethical obligation to defend conserved lands like our Washburn Family Forest from private development like Northern Pass,” said Jane Difley, president/forester of the Forest Society. “We also believe that the principles behind this case are of interest to every landowner in New Hampshire.”

The Forest Society has not opposed the Northern Pass project in concept, but called on partners Eversource and Hydro-Quebec to bury the proposed transmission line entirely. The current 192-mile proposal submitted by Eversource to the NH Site Evaluation Committee (SEC) would bury less than one-third of the line and would create miles of new overhead transmission corridor through northern New Hampshire. The Forest Society is an intervenor in the SEC process.

The Forest Society’s lawsuit can be read here.

The Superior Court decision that is being appealed can be read here.

The Forest Society is a private, non-profit land trust and forestry organization established in 1901. It currently holds more than 750 conservation easements statewide permanently protecting more than 100,000 acres of New Hampshire’s landscapes. The Forest Society also owns 180 Forest Reservations constituting more than 54,000 acres in 100 New Hampshire communities.