State v. City of Dover

Decision Date18 January 2006
Docket NumberNo. 2005–552.,2005–552.
Citation891 A.2d 524,153 N.H. 181
CourtNew Hampshire Supreme Court
Parties The STATE of New Hampshire v. CITY OF DOVER and another.

Kelly A. Ayotte, attorney general (Maureen D. Smith, senior assistant attorney general, on the brief and orally), for the State.

Watson & Lemire, P.A., of Portsmouth (Thomas R. Watson and Jennifer A. Lemire on the brief, and Mr. Watson orally), for the defendants.


The defendants, the Cities of Dover and Portsmouth (cities), appeal a decision by the Superior Court (Fitzgerald , J.) that suits filed by the cities against certain manufacturers, suppliers and distributors of methyl tertiary butyl ether (MTBE) must yield to suits filed by the State of New Hampshire against MTBE manufacturers, suppliers and distributors. We affirm.

The record reflects the following stipulated facts. MTBE was first added to gasoline in the late 1970's. Manufacturers of MTBE claim that adding MTBE to gasoline boosts octane levels and produces a cleaner burning fuel, which is less likely to produce airborne pollutants. Following the passage of the Clean Air Act of 1990, 42 U.S.C. §§ 7401 – 7671, addition of MTBE to gasoline became widespread in order to combat air pollution. MTBE, however, is more soluble than other gasoline components, and thus spreads more easily into water supplies, the water table and underground aquifers. Since 1990, numerous governmental and private plaintiffs have sued MTBE producers and distributors on a number of theories of liability, including negligent water pollution and strict product liability.

On September 30, 2003, the State, through the office of the attorney general, brought suit in the superior court against thirty out-of-state MTBE and gasoline designers, manufacturers and refiners alleging that MTBE had polluted the State's ground and surface waters. On October 16, 2003, the attorney general distributed a memorandum to all public water suppliers in the State, including the cities, informing them of the State's suit, its purpose, remedies sought, and that separate suits by public water suppliers would be considered duplicative.

On October 24, 2003, the City of Portsmouth filed an action in the superior court against sixty-one MTBE and gasoline manufacturers and distributors, including various in-state entities not sued by the State. On November 19, 2003, the City of Dover filed a similar action in the superior court against the same sixty-one defendants.

The State's suit alleged the following seven causes of action: (1) strict product liability for defective design; (2) strict product liability based upon failure to warn; (3) public nuisance; (4) strict liability under RSA chapters 146–A (2005) and 146–G (2005 & Supp.2005); (5) trespass; (6) negligence; and (7) unfair or deceptive business acts in violation of the Consumer Protection Act, RSA 358–A:2 (Supp.2005). The cities' suits allege the same causes of action as well as civil conspiracy and private nuisance. Both the State and the cities seek injunctive and equitable relief, compensatory damages for costs resulting from contamination, punitive damages, and costs.

All three suits were removed to the United States District Court for the Southern District of New York and consolidated with other MTBE cases from around the country. Both the State and the cities moved to remand the cases to state court. The district court denied the motions. The State has appealed this ruling to the United States Court of Appeals for the Second Circuit. The defendant MTBE suppliers, distributors and manufacturers moved to dismiss the cities' suits. That motion was granted in part and denied in part. See In re Methyl Tertiary Butyl Ether Products Liab ., 379 F.Supp.2d 348, 420 (S.D.N.Y.2005).

The State brought this suit in superior court seeking a declaratory judgment that the cities' MTBE suits must be dismissed because New Hampshire law requires that they yield to the State's MTBE suit. The parties sought an interlocutory transfer to this court, which we declined.

On April 1, 2005, the State moved for a declaratory ruling in superior court, asking the court to dismiss the cities' cases. The cities filed a cross-motion for a declaratory ruling that they may concurrently maintain their suits. The trial court ruled that the State had parens patriae standing and that the doctrine of parens patriae required the cities' suits to yield to the State's suit.

On appeal, the cities argue the trial court's ruling was erroneous for four reasons: (1) the State has not met the requirements for asserting parens patriae standing; (2) even if the State has parens patriae standing, the cities have a compelling interest in maintaining separate suits against the MTBE defendants; (3) the ruling contravenes a comprehensive statutory framework, by which the legislature has authorized and directed municipalities to bring MTBE contamination suits; and (4) requiring the cities' suits to yield to the State's suit violates the cities' constitutional right to a certain and complete remedy and the separation of powers doctrine. N.H. CONST. pt. I, arts. 14, 37.

The trial court decided the issue based upon stipulated facts. Because the facts are not in dispute, the issues before us are solely questions of law. See Benoit v. Test Systems, 142 N.H. 47, 49, 694 A.2d 992 (1997). Accordingly, we review the trial court's application of the law to the facts de novo . See id. "Because the issues raised involve only New Hampshire law, we decide this case on state law only." In re State (Bowman Search Warrants) , 146 N.H. 621, 624, 781 A.2d 988 (2001).

We have never been asked to define the limits of the State's parens patriae authority. We have, however, long recognized the State's parens patriae interest in the welfare of children, In re Juvenile 2002–098 , 148 N.H. 743, 747, 813 A.2d 1197 (2002), and in caring for mentally incompetent persons, see Opinion of the Justices , 123 N.H. 554, 560, 465 A.2d 484 (1983).

"Parens patriae literally means ‘parent of the country,’ and refers traditionally to the role of the state as sovereign and guardian of persons under legal disability." Massachusetts v. Bull HN Information Systems, 16 F.Supp.2d 90, 96 (D.Mass.1998).

The parens patriae action has its roots in the common-law concept of the "royal prerogative." The royal prerogative included the right or responsibility to take care of persons who are legally unable, on account of mental incapacity, whether it proceed from ... nonage[,] idiocy[, or] lunacy ... to take proper care of themselves and their property.

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (quotation omitted).

Over time, the meaning of the doctrine has evolved, and parens patriae has become a different and far broader sovereign power. Today, it is a concept of standing utilized to allow the state to protect "quasi-sovereign" interests such as the health, comfort and welfare of its citizens, interstate water rights, and the general economy of the state.

Bull HN Information Systems , 16 F.Supp.2d at 96 (citations omitted).

In Snapp , the United States Supreme Court articulated the circumstances under which a State has parens patriae standing to bring an action. Courts and commentators have distilled the Court's analysis into two parts. Bull HN Information Systems , 16 F.Supp.2d at 96. "First, the state must assert an injury to a ‘quasi sovereign’ interest, an interest apart from the interests of particular private parties. Second, the state must allege injury to a ‘substantial segment’ of its population." Id.

The Court in Snapp defined "quasi-sovereign" interests as "interests that the State has in the well-being of its populace.... A quasi-sovereign interest must be sufficiently concrete to create an actual controversy between the State and the defendant." Snapp , 458 U.S. at 602, 102 S.Ct. 3260. The Court recognized the State's quasi-sovereign interest in "the health and comfort of the inhabitants of a State." Id. at 603–04, 102 S.Ct. 3260 (quotation omitted). It indicated that States have a quasi-sovereign interest "in the abatement of public nuisances, instances in which the injury to the public health and comfort [is] graphic and direct." Id. at 604, 102 S.Ct. 3260. "Post–Snapp courts have generally interpreted the health and well-being category of quasi-sovereign interests broadly...." Bull HN Information Systems , 16 F.Supp.2d at 97. "A state also has a quasi-sovereign interest in preventing any injury or potential injury to the general health and well-being of its residents." Id.

Here, the State has a quasi-sovereign interest in protecting the health and well-being, both physical and economic, of its residents with respect to the statewide water supply. "The control and elimination of water pollution is a subject clearly within the scope of the [State's constitutional] police power." Shirley v. Commission, 100 N.H. 294, 299, 124 A.2d 189 (1956). Moreover, the State's interest is reflected in RSA 481:1 (2001), which provides:

The state as trustee of [the water of New Hampshire] for the public benefit declares that it has the authority and responsibility to provide careful stewardship over all the waters lying within its boundaries. The maximum public benefit shall be sought, including the assurance of health and safety, the enhancement of ecological and aesthetic values, and the overall economic, recreational and social well-being of the people of the state.

The State's interest in protecting its waters from MTBE contamination is thus "sufficiently concrete" to be a "quasi-sovereign" interest.

The second inquiry under Snapp is whether a sufficiently substantial segment of the population is affected by the challenged conduct. Bull HN Information Systems , 16 F.Supp.2d at 98. " This element is not conceptually distinct from the requirement that the state demonstrate a...

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