Public trust is central to new Sunapee access legal appeal

By Ray Carbone

NEWBURY – A group of sports enthusiasts’ organizations and interested private citizens have filed a new appeal to the state’s decision to deny a wetlands building permit that would have allowed the construction of a public boat access facility on Lake Sunapee.

In papers submitted to the Sullivan County Superior Court in Newport on Oct. 10, William Howard Dunn, the attorney representing the groups, reaches back to the English common law that is the basis for the American judicial system and even ancient Roman law.

Those systems support the idea that some properties – like New Hampshire’s lakes – are held in a “pubic trust” by the state government. “(As) stewards of public waters, the state safeguards the right to use and enjoy public waters,” he quotes from a previous case; Dunn also notes state statues that direct the state to “control the use of public waters and the adjacent shoreline for the greatest public benefit.”

The attorney quotes from a 60-year-old Gilmanton lawsuit… and from  a California case that found that members of the public ‘have standing to sue to protect the public trust.’

The issue of public access to Sunapee has been debated for more than 20 years. For some time, the state ‘s department of environmental services (DES) and its fish and game departments sought to build a facility to comply with the legal mandate that reasonable access be available to everyone. In 1990 the state purchased the former Wild Goose campground in Newbury and developed plans to construct a facility there.

But legal challenges from both the town and the Lake Sunapee Protective Association delayed the project for years. The opponents say there is sufficient public access to the lake (although not a state-owned/operated facility), and that dangerous traffic problems on Rte. 103 would result from using the Wild Goose land.

After years of administrative, legislative and court-related wrangling, it looked like the Wild Goose site would be developed. Then Gov. Chris Sununu announced last year that he was pulling the plug on the project because it had lingered unfinished for so long, causing widespread discord in the community. The move was opposed by the NH fish and game department but, not long afterwards, the NH Department of Environmental Services (DES) denied a request from fish and game official to extend it wetlands building permit for the site; for years, the five-year building allowance had been approved several times previously.

The local sport organizations (including the Sullivan County Sportsmen, the NH Bass Federation and the Mountain View Gun Club) joined with Gary Clark, author of The New Hampshire Fishing Guide, and others asking the DES to reconsider its ruling. But an officer with the DES’s wetlands board dismissed their appeal, stating that the groups lacked legal standing to question the decision.

Last August, Dunn filed the sports groups’ initial request, asking the court to overturn the state’s actions and force it to move ahead with building a public access facility on the Wild Goose land. At that time, he argued principally that the state had acted incorrectly and in opposition to its own legal responsibilities, bowing to political pressure.

In his latest filing, Dunn focuses more on the state’s actions based on long-standing legal precedents, as well as its own laws and regulations.

“By law, the nature of these things (that) are common to mankind – the air, running water, the sea and consequently the shores of the sea” are part of the public trust, he writes, quoting from a lawsuit filed by the National Audubon Society in California in 1983.

“This rule, that such land are held by the state in trust for the public at large applies to all states, as it was upheld by the U.S. Supreme Court,” Dunn adds. “New Hampshire came to hold the public trust in its waters and shoreline when it joined the union” (in 1776).

The attorney also quotes from a 60-year-old lawsuit filed in Gilmanton to illustrate that New Hampshire courts have recognized that common law rights are applicable to “private individuals.” The California case also found that members of the public “have standing to sue to protect the public trust.”

“The denial of the (wetlands building) extension is a breach of trust by the public trust,” Dunn concludes. “By refusing to grant the wetlands permit, the (state) has violated its own duty under, not just under (state) law but also under common law under the public trust doctrine.”

The legal filing asks the court to order the DES to grant the fish and game’s wetlands building permit extension to August 28, 2022, and to allow the sportsmen organizations to continue to be considered in future actions under the “public trust” doctrine.

In response, DES’s legal team did not object to the new filing, but it argued that the case had already been decided. In addition, the group said that it would appeal the court’s decision if the ruling goes against the agency.

At this time, there’s no indication when the court will issue its final ruling.

This story originally ran in the InterTown Record weekly newspaper, published in Sutton, New Hampshire, on Tuesday, October 23, 2018.

 

 

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Town clerk quits, cites bad work environment

By Ray Carbone

WARNER – The town’s long-time town clerk, Judy Newman-Rogers, has resigned her position, charging that town leaders have allowed a “hostile, unpleasant and dysfunctional environment” to develop at town hall.

In a 337-word letter addressed to the board of selectmen and dated Oct. 1, the departing clerk is critical of both the three-member elected board and Jim Bingham, the town administrator, for not addressing ongoing problems.

“Unfortunately, requests for resolution to situations made known to the town administrator and the board of selectmen have gone unaddressed,” it reads. “Previous administrative traits of transparency, trust, honesty, lawfulness, communication, integrity, accountability and equal application of policy and procedure have been supplanted with deflection, delay, denial, disrespect, dismissals, discrimination and blatant division of personnel.”

‘The selectmen are not doing anything about it. And it’s effecting employees and the townspeople.’

 – Judy Newman-Rogers, Warner (NH) Town Clerk

In phone and text communications on Sunday, Newman-Rogers said the selectmen have failed to properly manage Bingham, which has resulted in problems with town employees, communications and procedural issues.

“It’s financial – that would cover quite a bit of it, the finances of the town,” she said. “But it’s also that the board of selectmen have to make sure that the laws are followed and our privacy is kept (protected). There’s security for different things. Employee dissatisfaction, low morale and the biases… The favoritism is huge.

“It’s been a long time now that the select board has been ignoring what’s going on in the (town) office with employee situations, and things that are going on that shouldn’t be,” Newman-Rogers said. “The selectmen are not doing anything about it. And it’s effecting employees and the townspeople.”

The departing clerk specifically pointed the finger at Bingham, saying that “the town administrator is the problem.”

(Jim Bingham, the town administrator, did not respond to requests for an interview during the weekend.)

“I don’t want to go to a selectmen’s meeting and hear that the selectmen are surprised by an issue I’m dealing with,” Newman-Rogers said. “I don’t want the town administrator to say, we’ll bring this to the selectmen’s meeting and then it doesn’t happen.

“We need transparency, and when information is public it should be provided without question, and when it’s supposed to be,” she said. “There shouldn’t be any roadblocks and stops put up when people request information. I think that’s not good for our town.

“I think communications with the public is very important,” the departing clerk said. “That needs to be improved. And when people are trying to improve that, they shouldn’t be given a hard time about it.”

On Saturday, Kimberly Brown Edelmann, the chairman of the board of selectmen, and Clyde Carson, another board member, said that they’ve been aware of tensions among some town employees for awhile now but they were caught off-guard when Newman-Rogers read her resignation letter aloud during the public input session of last week’s meeting. “We did not see this coming,” the chairman said. “I even said that at the meeting: ‘I didn’t see that coming.’”

Brown Edelmann said she doesn’t know what specific situations the town clerk was referencing in her letter because the information was “not specific enough.”

“The board still has to sort this out,” said Carson. “I think the board is going to hear more about that (i.e., the situations).”

Neither of the selectmen would comment on any situations that Newman-Rogers referenced in her letter, saying that they are legally restrained from discussing personnel issues in public.

Newman-Rogers concluded her letter with regrets about any problems that her departure may cause the town.

“It has been an honor and privilege to have served the residents of Warner as deputy town clerk and then as town clerk for the past 24 years,” she wrote. “I am truly grateful for the trust, support and confidence they have had in me.”

Brown Edelmann said the selectmen were grateful for the departing clerk’s years of service to Warner. “I certainly hope that she finds a situation that makes her feel less stressed, and whatever else she’s looking for,” she added.

Newman-Rogers will officially leave her position at the end of this week on Friday, Oct. 13; town hall is closed Fridays so her actual last day on the job is scheduled for Thursday, Oct. 12.

This story originally ran in the InterTown Record weekly newspaper, published in Sutton, New Hampshire, on Tuesday, October 9, 2018.

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