Appeal of Coastal Materials Corp.

• Decision Date: 09 November 1987
• Docket Number: No. 86-526,86-526
• Citation: 534 A.2d 398,130 N.H. 98
• Parties: Appeal of COASTAL MATERIALS CORPORATION (New Hampshire Department of Resources and Economic Development).
• Court: New Hampshire Supreme Court

Page 398

534 A.2d 398

130 N.H. 98

Appeal of COASTAL MATERIALS CORPORATION (New Hampshire Department of Resources and Economic Development).

No. 86-526.

Supreme Court of New Hampshire.

Nov. 9, 1987.

Shaines & McEachern P.A., Portsmouth (Robert A. Shaines, on the brief and orally), for plaintiff.

Stephen E. Merrill, Atty. Gen. (Daniel J. Mullen, Asst. Atty. Gen., on brief, and David S. Peck orally), for the State.

JOHNSON, Justice.

This appeal arises from the denial by the Commissioner of the New Hampshire Department of Resources and Economic Development (DRED) of plaintiff's application for a mining permit for a 310-acre tract of land which the plaintiff owns in Raymond. We reverse.

Plaintiff, Coastal Materials Corporation (Coastal), is a New Hampshire corporation whose Raymond property contains large microline granite outcroppings suitable for the extraction of granite. Coastal anticipated crushing the extracted granite so that it could be used as construction aggregate. On July 9, 1986, pursuant to RSA chapter 12-E, which governs mining and reclamation in New Hampshire, Coastal submitted to DRED an application for a mining permit. RSA 12-E:4 (Supp.1986). On August 28, 1986, DRED, pursuant to RSA 12-E:5, conducted a public hearing to determine whether Coastal's application should be granted. RSA 12-E:5 (Supp.1986).

In the interim between July 9 and August 28, DRED Commissioner John T. Flanders consulted the office of the attorney general for advice regarding the effect upon Coastal's application of DRED's Administrative Rule Res-M 301.02 (formerly Res-F 301.02). Res-M 301.02 states: "The department declares that prospecting for and mining of rock to be broken and/or crushed for use by the construction industry are not within its permitting authority under RSA 12-E." Min. & Recl. Res-M 301.02. On July 23, 1986, the attorney general advised Commissioner Flanders that Res-M 301.02 "creates a gap in the regulatory structure" and "must be repealed." The attorney general observed that while RSA 12-E confers upon DRED express authority to regulate the mining of granite, that statute exempts from coverage "construction aggregate to be excavated from natural deposits [e.g., sand, gravel, soil] on or in the earth or in or underneath water."

Conversely, RSA chapter 155-E, which confers upon local officials (planning boards, selectmen or, in the case of unincorporated areas, county commissioners) express authority to regulate "excavations" of "earth," RSA 155-E:1, I, which means "sand, gravel, rock, soil or construction aggregate," exempts from coverage "excavation from a granite quarry." RSA 155-E:2, IV. Since Res-M 301.02 prohibits the State from regulating man-made construction aggregate under RSA chapter 12-E, and since RSA chapter 155-E prohibits localities from regulating "excavation from a granite quarry," id., the attorney general reasoned that if Res-M 301.02 remained in effect, man-made construction aggregate would be regulated by neither State nor local authorities.

Pursuant to the attorney general's advice, Commissioner Flanders promulgated an emergency rule on August 1, 1986, which, pursuant to RSA 541-A:3-a(g) (Supp.1986), permitted DRED to authorize stone crushing as an accessory use to granite operations. Simultaneously, DRED repealed Res-M 301.02. The effect of that repeal was short-lived however, because on October 29, 1986, the attorney general's office reversed its earlier position and advised DRED that Res-M 301.02 was a valid rule because all stone-crushing operations, even those which are accessory uses to granite quarrying, are governed exclusively by local authorities pursuant to RSA 155-E. The attorney general's October 29 opinion concluded that "if granite were being crushed and used as construction aggregate, the excavation site would not be considered a granite quarry and regulation of the excavation site would be left to the municipality."

On October 31, 1986, Commissioner Flanders, having adopted the position stated in the attorney general's October 29 opinion, informed Coastal that "because the excavation [which Coastal had proposed] involved crushed rock for construction aggregate, a local permit, under the provisions of RSA 155-E, will be required rather than a mining permit under the provisions of RSA 12-E." On November 17, 1986, Coastal applied to Commissioner Flanders for a rehearing of its mining application. Commissioner Flanders replied that "[t]he request for a rehearing is denied because no decision was rendered by the Commissioner on the hearing held on August 28, 1986 in Raymond as it has been found that the proposed excavation must be the subject of a permit issued by the municipality; not the State of New Hampshire. The request to grant a permit to the Coastal Materials Company for a quarry operation in the town of Raymond is denied because the Department does not have jurisdiction in the matter." Coastal appeals the Commissioner's decision.

The principal issue in this case is whether RSA chapter 12-E confers upon the commissioner of DRED exclusive authority to regulate granite quarrying in New Hampshire. If the statute does confer such authority upon the commissioner, Administrative Rule Res-M 301.02 was unlawful, as is any administrative action taken on the assumption that the rule correctly reflected the law, because it clearly conflicts with the assignment to DRED of broad and exclusive control over mining, including granite-crushing. In determining legislative intent, inquiry begins with an examination of the statutory language. In re Robyn W., 124 N.H. 377, 379, 469 A.2d 1351, 1352 (1983). The words in the statute itself are the touchstone of the legislature's intention. Greenhalge v. Town of Dunbarton, 122 N.H. 1038, 1040, 453 A.2d 1295, 1296 (1982).

Coastal argues that Res-M 301.02 should be vacated because it contravenes the legislature's intent that all mining activities in New Hampshire be regulated by State officials under the authority of RSA 12-E. We agree with Coastal that RSA 12-E clearly expresses a legislative intent that State authorities regulate, in a comprehensive fashion, all mining in New Hampshire, including granite quarrying from which is produced crushed stone to be used as construction aggregate. RSA 12-E:1, V specifically includes granite in its definition of "mineral" and specifically excludes "sand, gravel and construction aggregate to be excavated from natural deposits on or in the earth or in or underneath water." RSA 12-E:1, V (Supp.1986). (Emphasis added.) The statute defines "mining" as "the activities performed in the extraction of minerals including the excavation of pits, removal of minerals, disposal of overburden and the construction of roads for the haulage of mining materials ..." RSA 12-E:1, VI (Supp.1986). The statute defines quarry as "an excavation in bedrock open to the surface excavated for the purpose of removing rock, minerals or metallic ores." RSA 12-E:1, XII (Supp.1986). In addition to referring specifically to granite and to quarrying in identifying the scope of its coverage, RSA 12-E makes several references to "blasting" and "blasting activities."

RSA 12-E:4, II stipulates that a "mining permit shall include a mining plan, a blasting plan if such activities are anticipated, and a reclamation plan." RSA 12-E:4, II (Supp.1986). RSA 12-E:4, III requires that applications for mining permits include a copy of an insurance policy which affords protection for, among other things, "property damage, including blasting damage ..." RSA 12-E:4, III (Supp.1986). Finally, RSA 12-E:5, IV(f) requires all mining plans to include "a description of anticipated blasting activities during the mining operation ..." RSA 12-E:5, IV(f) (Supp.1986).

While the language of RSA 12-E then, expresses a clear intention that the crushing of granite be regulated by State authorities, RSA 155-E expresses an equally clear intention that the crushing of granite not be regulated by local authorities. RSA 155-E:2, IV specifically exempts from coverage "excavation from a granite quarry." RSA 155-E:2, IV (Supp.1986). The statute makes no mention of blasting because it is designed to regulate the excavation of "earth," namely, "sand, gravel, rock, soil or construction aggregate," which exists in "natural deposits" and can therefore be shoveled, loaded into a truck and hauled away without the necessity for blasting. RSA 155-E:1, I (Supp.1986). The specific references to "granite," "quarry" and "blasting" in RSA 12-E and the absence of those references in RSA 155-E indicate that, contrary to the view of DRED, the legislature intended that RSA 12-E would govern not only the extraction of dimensional stone, which is the current position of DRED, but also the crushing of granite for use as construction aggregate. By focusing upon the form which the granite in Coastal's operation would take, namely, crushed instead of dimensional, and upon the ultimate use for the granite, namely, construction aggregate instead of building stone, DRED erroneously concludes that RSA 12-E governs only dimensional stone. By focusing instead upon the nature of the materials in Coastal's operation and the clear legislative distinction between "minerals," as identified in RSA 12-E, and "earth," as identified in RSA 155-E, Coastal properly concludes that RSA 12-E governs all granite quarrying activities, including the crushing of the mineral for use as construction aggregate. We agree with Coastal that "a stone crusher is a valid accessory use to the extraction of rock, and is therefore not prohibited by local zoning ordinances relating to industrial uses, nor sufficient to remove granite quarries from state regulation under RSA 12-E."

The respective legislative histories of RSA 12-E and RSA 155-E support Coastal's conclusion. To determine legislative intent, a court construing a statute must look to the apparent statutory purpose as disclosed by its language in...