In re Fournier
| Decision Date | 22 April 2022 |
| Docket Number | 2021-0085 |
| Court | New Hampshire Supreme Court |
| Parties | Appeal of Suzanne Fournier & a., |
Having considered the briefs and oral arguments of the parties, the court concludes that a formal written opinion is unnecessary in this case. The appellants, Suzanne Fournier and Rae-Ann Melancon, appeal an order of the New Hampshire Water Council (Water Council) upholding the issuance of an alteration of terrain (AoT) permit by the New Hampshire Department of Environmental Services, Alteration of Terrain Bureau (DES) to the intervenor, Leighton A. White, Inc., to conduct a gravel mining operation on privately-owned land in Milford. We affirm.
This appeal is the second appeal filed by Ms. Fournier related to the issuance of an AoT permit for a gravel mining operation in Milford. See Appeal of Fournier, Case No 2018-0617, 2019 WL 6040519, at *1 (N.H. Nov. 14, 2019). The first appeal concerned a proposed gravel mining operation on the Brox Community Lands, a property owned by the Town of Milford. Id. The Town-owned property is a known habitat for the eastern hog-nosed snake, Blanding's turtle, and the spotted turtle, which are species identified by the New Hampshire Fish and Game Department (Fish & Game) as either threatened or endangered. See id.
The primary issue in Appeal of Fournier concerned New Hampshire Administrative Rule, Env-Wq 1503.19(h), which, at all times relevant to Appeal of Fournier and the instant appeal, provided that DES "shall not issue [a] permit unless the applicant demonstrates that . . . [t]he project has been designed in a manner that will not result in adverse impacts to state- or federally-listed threatened or endangered species." Appeal of Fournier, 2019 WL 6040519, at *1 (quotation and emphasis omitted). In Appeal of Fournier, we reversed on the ground that DES had applied an incorrect legal standard by issuing a permit "for a project designed to minimize adverse impacts" on endangered or threatened species instead of issuing a permit for a project designed to "prevent" such impacts. Id. at *1, *5. We rejected DES' argument that the more demanding "no adverse impact" standard could never be satisfied if threatened or endangered species were present, noting evidence that "when . . . studies take place before implementation of a project, it is possible . . . to design around the threatened or endangered species' use of the property." Id. at *4 (quotation omitted). Justice Hantz Marconi concurred in the result explaining that she would have reversed on the ground that the evidence was insufficient to meet either the "no adverse impact" or "minimal adverse impact" standard because there were no "studies conducted prior to the issuance of the permit." Id. at *5.
The land at issue in the instant appeal is near the Town-owned land at issue in Appeal of Fournier. The AoT permit in this case was issued in June 2018. In July 2018, the appellants appealed to the Water Council. The appellants asserted that DES had unlawfully issued the AoT permit because: (1) "[r]ather than incorporate enforceable conditions in its permit to protect threatened [or] endangered species, DES only included terms that are optional recommendations"; (2) absent a pre-permit study of the site, "DES had no information about how to design a project on this property in a manner that does not result in adverse effects on the threatened [or] endangered species . . . known to be present there"; and (3) DES applied the wrong legal standard when deciding to issue the AoT permit.
In a January 2020 decision, the Water Council agreed with the appellants' first argument and remanded so that DES could rewrite the recommendations by Fish & Game "in language that is mandatory and enforceable." The Water Council rejected the appellants' second argument, finding that a pre-permit study was unnecessary prior to DES approval of the project because Fish & Game "and DES already possessed a substantial amount of knowledge pertaining to [threatened or endangered species] inhabiting the site and other nearby parcels." The Water Council also rejected the appellants' third claim, finding that instead of "authorizing the design of a project that 'minimizes' adverse impacts to [threatened or endangered species], the permit . . . is conditioned on a design that contains DES 'Proposed Operations To Avoid Take Of Endangered Species'" and incorporates "'Additional [Fish & Game] Recommendations/Conditions.'"
The appellants subsequently moved for rehearing only on the pre-permit study issue, arguing that the Water Council had erroneously concluded that such study was unnecessary. The Water Council granted the appellants' motion, agreeing to rehear only "whether DES had sufficient evidence in the record" to support its determination that issuing the permit complied with Rule 1503.19(h). On rehearing, the Water Council determined that the appellants had failed to establish that there was insufficient evidence to support DES' determination. This appeal followed.
RSA chapter 541 governs our review of Water Council decisions. See RSA 21-O:14, III (2020). We will not set aside the Water Council's decision "except for errors of law," unless we are "satisfied, by a clear preponderance of the evidence before us, that such order is unjust...
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