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Appeal of Town of Lincoln

Supreme Court of New Hampshire

June 7, 2019

APPEAL OF TOWN OF LINCOLN (New Hampshire Water Council)

          Argued: November 28, 2018

          Upton & Hatfield, LLP, of Portsmouth and Concord (Russell F. Hilliard and Brooke Lovett Shilo on the brief, and Mr. Hilliard orally), for the petitioner.

          Gordon J. MacDonald, attorney general (Mary E. Maloney, assistant attorney general, on the brief and orally), for the respondent.

          BASSETT, J.

         The petitioner, the Town of Lincoln, appeals an order of the New Hampshire Water Council upholding a decision by the respondent, the New Hampshire Department of Environmental Services (DES), ordering the Town to repair the Pemigewasset River Levee, a fortified embankment with granite block facing, located along approximately 1, 700 feet of the northwesterly bank of the East Branch of the Pemigewasset River in Lincoln. The Water Council found that the Town was the owner of the levee pursuant to RSA 482:11-a (2013), and therefore was obligated under the statute to maintain and repair the levee. We reverse.

         The record supports the following facts. In 1912, the Franconia Paper Company constructed the levee on company property along the Pemigewasset River. In 1959, the levee was damaged by a flood. At town meeting in March 1960, the residents of the Town voted to approve a restoration of the levee, to be performed by the United States Army Corps of Engineers. To facilitate the project, and in order to secure federal funding for the restoration under the Flood Control Act of 1936, the residents authorized the Town to enter into agreements with the Army Corps, and to "acquire any real estate interests" necessary for the restoration project. In June 1960, the Town executed an Assurance Agreement with the Army Corps (the Assurance), obligating the Town to

(a) provide without cost to the United States, all lands, easements, and rights-of-way necessary for the construction of the project; (b) hold and save the United States free from damages due to the construction works; (c) maintain and operate all the works after completion in accordance with regulations prescribed by the Secretary of the Army.

         In order to satisfy these obligations to the Army Corps, and because the Town did not own the land or the levee, in July 1960 the Town entered into a Right-of-Entry Agreement (the REA) with the fee owner, the Franconia Paper Company. The REA granted to the Town and the United States the "right to enter upon the . . . lands to perform construction work of any nature necessary in the restoration of the [levee], and to enter upon said lands at any time to inspect the restored [levee] with a view to its proper maintenance and operation." The REA also provided that the Franconia Paper Company reserved for itself, and its successors and assigns, all rights in the land that would not interfere with those it had granted to the Town and the United States. Pursuant to these agreements, the reconstruction of the levee was done by the Army Corps.

         In 1971, the Franconia Paper Company, then under a new corporate name, conveyed certain parcels of land to the Franconia Manufacturing Corporation by quitclaim deed. The deed provided that Franconia Manufacturing Corporation was taking the land subject to the rights previously granted to the Town and the United States, and provided that both the Town and the United States held easements enabling them to "enter the premises via the present access road or by whatever route is necessary and convenient at any time to inspect the restored flood control [levee] with a view to its proper maintenance and operation . . . ." (the 1971 deed). The 1971 deed also provided that

[t]he [Franconia Manufacturing Corporation], by accepting this conveyance covenants and agrees to assume and discharge the obligations of the [Franconia Paper Company] (assumed by the [Franconia Paper Company] by instruments executed . . . in 1961) to maintain the [levee] on the northerly bank of said East Branch as constructed by and under the supervision of the United States Army Engineers.

         In 2011, the levee was severely damaged by Tropical Storm Irene. In 2014 and 2015, DES inspected the levee and determined that it was a "dam in disrepair," classifying it as a "high hazard [potential] dam." See RSA 482:2, I, V (2013). In August 2015, DES issued a Letter of Deficiency to the Town listing the levee's defects and requesting that the Town bring the levee back into compliance. The Town responded to DES, stating that, although it was not the owner of the levee, it already had plans to complete the needed repairs. After the Town and DES failed to agree on how to proceed, DES ordered the Town to repair the levee, concluding, without express analysis, that the Town was the owner of the levee. The Town appealed the order to the Water Council.

         The Water Council upheld the DES decision in an order on the parties' cross-motions for summary judgment, interpreting RSA 482:11-a, which provides that "[t]he owner of a dam shall maintain and repair the dam so that it shall not become a dam in disrepair." RSA 482:11-a. Although the Water Council found that the Town was not the fee owner of the levee, and had not acquired fee ownership through either the process of dedication and acceptance, see Hersh v. Plonski, 156 N.H. 511, 514-16 (2007), or a vote of the selectmen pursuant to RSA 41:14-a (2012), it also found that the Town was the owner of the levee within the meaning of RSA 482:11-a. The Water Council stated that

the Town's argument that it is not the owner of the dam within the meaning of RSA 482:11-a, and therefore not subject to DES regulatory action is rejected. The Town holds an easement interest in the dam that is sufficient for purposes of imposing on [the Town] the repair and maintenance requirements of [RSA 482:11-a].

The Water Council denied the Town's motion for rehearing, and this appeal followed.

         RSA chapter 541 governs our review of Water Council decisions. See RSA 21-O:14, III (2012). The party seeking to set aside the Water Council's order bears the burden of proof "to show that the [order] is clearly unreasonable or unlawful." RSA 541:13 (2007). "[A]ll findings of the [Water Council] upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable." Id. "[T]he order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable." Id. "In reviewing the Council's findings, our task is not to determine whether we would have found differently or to reweigh the evidence, but, rather, to determine whether the findings are supported by competent evidence in the record." Appeal of Cook, 170 N.H. 746, 749 (2018).

         We review the Water Council's rulings on issues of law d ...


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