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Northern Pass answers SPNHF's petition for declaratory judgment


December 08, 2015
LANCASTER — Northern Pass Transmission (NPT) responded to the lawsuit that the Society for the Protection of New Hampshire Forests (SPNHF) filed on Nov. 19 in the Coös Superior Court by filing a strong defense in the same court on Thursday, Dec. 3, that asserts what it believes is its right to use a public right-of-way (ROW) to bury portions of its proposed electric hydro-power project.

NPT points out that longstanding state law "…expressly authorizes the installation of underground conduits and cables in public highways…"

SPNHF claims in its Nov. 19 request for a declaratory judgment that it controls the land under a section of the public state-maintained highway, Route 3 in Clarksville, where Northern Pass proposes to bury its cable.

"Despite repeatedly calling on Northern Pass to bury the transmission line, SPNHF is employing this lawsuit in an attempt to keep the project from being buried within a public right of way," said Northern Pass spokesman Martin Murray, Eversource's in-state media relations manager.

NPT maintains in its filing that "… SPNHF's permission is not required, as the New Hampshire Department of Transportation (NHDOT) is the sole authority for granting permission to install the utilities at issue within the public right of way…." NPT states that "utilities have long been recognized as appropriate users of public highway easements, and the use of public highways for the installation of underground conduit and cables is expressly authorized by statute, subject to the exclusive jurisdiction in the NHDOT to license such uses."

NPT's filing answers SPNHF's several arguments, point-by-point.

For example, NPT asserts that Route 3 in Clarksville is a Class I state highway and not a Class II road as SPNHF claims. NPT also states that, under N. H. law, the use of a public ROW is not dependent on abutting landowners approving of the use, or directly benefitting from it. NPT maintains that using a public ROW is "not a taking or occupation of private land without compensation."

NPT asked the Court to expedite its consideration of the issue. It submitted its application to the state Site Evaluation Committee (SEC) on Oct. 19.

Two attorneys — Bruce Felmly and Adam Hamel — both of McLane Middleton, P.A., of Manchester represent NPT.

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