Appeal of Lathrop

• Decision Date: 22 March 1982
• Docket Number: Nos. 81-162,81-163,s. 81-162
• Citation: 122 N.H. 262,444 A.2d 505
• Parties: Appeal of Jeffrey LATHROP et al. Appeal of the APPALACHIAN MOUNTAIN CLUB (New Hampshire Water Resources Board).
• Court: New Hampshire Supreme Court

Page 505

444 A.2d 505

122 N.H. 262

Appeal of Jeffrey LATHROP et al.

Appeal of the APPALACHIAN MOUNTAIN CLUB (New Hampshire Water Resources Board).

Nos. 81-162, 81-163.

Supreme Court of New Hampshire.

March 22, 1982.

Peter S. Wright and Bruce W. Felmly, Manchester, for Lathrop et al.

Barto & Gfroerer, Concord (John W. Barto, Concord, on brief and orally), for Appalachian Mountain Club.

Gregory H. Smith, Atty. Gen. (Edward L. Cross, Jr., Asst. Atty. Gen., on brief and orally), for New Hampshire Water Resources.

Gallagher, Callahan & Gartrell, Concord (Steven J. McAuliffe, Concord, on brief and orally), for Androscoggin Elec. Corp.

Thomas B. Arnold, Boston, Mass., by brief and orally, for New England Rivers Center, as amicus curiae.

BATCHELDER, Justice.

This is an appeal from order 69:01-H of the New Hampshire Water Resources Board (WRB), dated March 26, 1981, granting the petition of the Androscoggin Electric Corporation to develop a hydro-electric facility on the Androscoggin River in the Town of Dummer. The WRB, on March 5, 1980, had recommended to the Governor and Council that a lease or transfer of interests in land be conveyed from the State to the Androscoggin Electric Corporation as part of the overall hydro-electric project. The area involved in this agency appeal consists of an old dam in a state of disrepair plus about twenty-five acres of land and is generally known as the Pontook Dam site.

On June 8, 1967, Public Service Company of New Hampshire conveyed by deed to the State of New Hampshire the subject premises together with approximately 1,500 acres of land along the Androscoggin River. The dedication included a restriction that the land be used for recreational purposes. In 1976, the Governor and Council assigned jurisdiction over the area to the WRB. Jurisdiction over the "lands" in the Pontook site was later transferred to the New Hampshire Department of Resources and Economic Development (DRED) on April 28, 1977.

The Androscoggin Electric Corporation began petitioning on July 28, 1978, to acquire the property needed to construct a hydro-electric generating plant. Because a transfer of State-owned land was involved, the Governor and Council referred the petition to WRB and DRED for recommendations on November 22, 1978. The WRB endorsed the project on February 1, 1979, but, shortly thereafter, DRED indicated that it believed that the development was not in the public interest and that it might violate the terms of the dedication.

Finally, on March 5, 1980, the WRB passed two resolutions stating:

"In order that all authority for supervision over this site be again situated in one department and so it can move forward, I, Salvatore P. Grasso, Director, move that the authority over the lands formerly assigned by Governor and Council to DRED be reassigned and returned to the authority of the New Hampshire Water Resources Board for implementation of this project as set forth in the modified petition before us....

[I]t was unanimously voted to authorize the Chairman to recommend to Governor and Council, that they negotiate a lease, or necessary rights to the dam, water rights, and land held by the State of New Hampshire at the Pontook Reservoir, subject to Mr. Robert Shaw receiving the appropriate permits from the National Energy Regulatory Commission to construct a hydroelectric facility at this site."

(Emphasis added.) This resolution was appended to a memorandum sent to the Governor and Council, dated March 18, 1980, again urging approval of the project. The project was shortly thereafter assigned exclusively to the WRB by the Governor and Council. Although the rebuilding of the dam and the transfer of interests in the State lands are parts of a total project, the order under appeal deals only with the dam.

In November 1980, the Androscoggin Electric Corporation petitioned the WRB for permission to rebuild the dam. The WRB held a public hearing on January 21, 1981, to determine the public use and benefit of the dam reconstruction, as required by RSA 482:16 & :19 to :22. On March 26, 1981, the WRB issued an order approving the application, subject to certain conditions. Intervenors Lathrop & a. and the Appalachian Mountain Club appealed. The appellants argue that they were denied due process. We agree.

That a governmental tribunal must utilize fair procedures is elemental. See U.S.Const.amends. V & XIV; N.H.Const. Pt. I, Art. 35; In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). It is well established that due process guarantees also apply to administrative agencies. See, e.g., Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 1463, 43 L.Ed.2d 712 (1975); Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973); In re Jack O'Lantern, Inc., 118 N.H. 445, 449, 387 A.2d 1166, 1168 (1978); N.H. Milk Dealers' Ass'n v. Milk Control Board, 107 N.H. 335, 337, 338, 222 A.2d 194, 197-98 (1966). For this reason many federal and state agencies utilize administrative law judges. See generally 1 F. Cooper, State Administrative Law 331-34 (1965); K. Davis, Administrative Law Text § 10.06, at 223-24 (1972). Although there is a presumption of regularity and impartiality attending the actions of an administrative agency, see, e.g. Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 497, 96 S.Ct. 2308, 2316, 49 L.Ed.2d 1 (1976), it is a rebuttable one. See, e.g., Cedar Rapids Steel Transp. v. Iowa State Com. Com'n, 160 N.W.2d 825, 836 (Iowa 1968), cert. denied, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969).

The appellants argue that the WRB action should be nullified because it showed "a predetermined purpose to reach a determined end." See Continental Box Co. v. NLRB, 113 F.2d 93, 96 (5th Cir. 1940). This court has previously stated that:

"It is a well-established legal principle that a distinction must be made between a preconceived point of view about certain principles of law or a predisposed view about the public or economic policies which should be controlling and a prejudgment concerning issues of fact in a particular case.... There is no doubt that the latter would constitute a ground for disqualification."

N.H. Milk Dealers' Ass'n v. Milk Control Board, 107 N.H. at 339, 222 A.2d at 198 (citation omitted). See also Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 589-91 (D.C.Cir.1970). Cf. Hortonville Dist. v. Hortonville Ed. Assn., 426 U.S. at 493, 96 S.Ct. at 2314. ("Nor is a decision-maker disqualified simply because he has ...