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My Turn: Forest society can’t deny Northern Pass use of public roads

The Northern Pass project recently proposed a new route with plans to bury a portion of the transmission line under existing public roads. The Society for the Protection of New Hampshire Forests has previously advocated for line burial, yet, in an orchestrated barrage of publicity, this group is now loudly trumpeting its “right” to deny Northern Pass permission to use these public roads because the society owns the adjoining land.

The notion that anyone, including Northern Pass, has to obtain the society’s approval to use a public right of way is simply and plainly wrong.

Northern Pass, like all projects of its size and scope, is required to follow the process established in law, and it will be subject to a rigorous review by the New Hampshire Site Evaluation Committee.

Nevertheless, Northern Pass’s proposed use of the public roads for its power line is an entirely legal and proper use of public road easements. Most of us realize that putting power lines within roadways is not at all “ground-breaking,” as one errant news account claimed.

For more than 100 years, the siting of electric lines has been a legitimate use of public roads because they convey a valuable commodity: electricity.

After all, that is the very purpose of a public right of way: to provide for the conveyance of people, goods and services from point to point.

Sometimes products are transported in vehicles. Other times they are carried in pipelines or along cables or wires. But they are all well-recognized uses of a public road.

Consequently, power lines along roads are a ubiquitous presence – common sights to all of us.

Though less visible, our roads are also rife with buried utilities of all sorts, including gas pipelines, water and sewer pipes, fiber optic and electric cables, to name just a few.

They are not there by accident.

The New Hampshire Legislature long ago enacted a statute specifically authorizing utility services, including underground power lines, within public roads. Legally, it makes no difference whatsoever whether the power line is above or below the surface. So long as it remains within the footprint of the public easement and doesn’t unreasonably infringe on other users’ rights, transmitting electricity is an appropriate and legal use of a public road.

The forest society is correct in that most public roads are right-of-way easements and abutters technically own the land to the center of the road, as well as the air space above it for that matter.

That does not mean, however, that as an abutter it gets to arbitrarily veto the use of the public road by those it doesn’t approve of. Public roads exist precisely so that users don’t have to get permission from each landowner every time they choose to use the right of way.

Northern Pass’s proposal to bury some of its line within road easements just as the forest society previously demanded is an entirely appropriate and long established use of publicly shared rights. Since the public already owns the existing rights of way, doing so does not require the purchase of additional private property rights.

Perhaps it is worth reminding the Society for the Protection of New Hampshire Forests that the roads belong to all of us.

(Attorney Mark Hodgdon of Concord represents Northern Pass. He served as a member of the New Hampshire attorney general’s office representing the Department of Transportation for 24 years before starting his own law practice.)

Legacy Comments20

RSA or not, you are getting too tied up with the literal reading which really is not the issue. PSH, Unitil and the owners of natural gas lines where applicable are not required to seek individual property owners rights to maintain assets in said right aways. All you have to do is look around and see the cutting/trimming of trees adjacent to power lines to reduce storm damages and power outages to know this. Let's not forget that if not for the Weeks Bill and the US Gov, all of this land still would be deforested anyway. Build it or not, I don't care, this is NIMBY pure and simple.

I don't know where you live but in central NH they ask permission and get signatures of private property owners before doing any trimming around power lines. I suspect they wouldn't bother if they didn't feel they needed permission. How does looking around and seeing trimming going on tell you that they didn't seek permission first? NIMBY is where CT says, "not in our backyard". They outlaw overhead transmission in CT and mandate underground but are fine with trashing NH with huge towers so they can have the power in CT. NIMBY, pure and simple alright.

The right granted by RSA 231:160 for public electric utilities to “erect[], install[] and maintain[] electric power poles and structures and underground conduits and cables, with their respective attachments and appurtenances,” “in any public highways,” allows “[a]ny such person, copartnership or corporation desiring to erect or install any such poles, structures, conduits, cables or wires in, under or across any such highway, shall secure a permit or license therefor [from the municipality],” RSA 231:161, VI, BUT ONLY TO THE EXTENT “required in the reasonable and proper operation of the business carried on by such licensee.” Public Service Company of New Hampshire is not a public utility for the purpose of transmitting electric power THROUGH the State of New Hampshire to other states’ utilities on behalf of a non-utility power consortium; it is only a public utility permitted to supply electric power TO State of New Hampshire customers. Attempting to profit by re-licensing its easement rights to an out-of-state/Canadian power consortium is not “required in the reasonable and proper operation of [its] business,” so Attorney Hodgdon’s argument is probably futile.

Thanks for this info, it seems to be a much more relevant law than RSA 231:167. For what it is worth, I totally agree with your interpertation and conclusion

I want to be clear here - I have no opinion on whether NP is a good idea. I'm really only interested in the discussion. But it seems like this may be too narrow a definition of what constitutes a reasonable and proper operation of the business. As I understand the electrical grid, power is distributed widely and the power utilities of the various New England states are all connected and distribute power that comes from numerous sources. So the power has to come from somewhere. NP is a subsidiary of Northeast Utilities, parent company of several New England power utilities including PSNH. Doesn't Northeast Utilities have an argument that what it is proposing is part of the reasonable and proper operation of its business because it is nothing more than a way of procuring more inventory to distribute to its subsidiaries in various states for further distribution to their consumers? Can we at least agree that this has nothing to do with eminent domain?

Why do all the people who claim they have no opinion or don't care if the proposed project is ever built - all argue for the proposal? Referring to yourself as a "jamoke" also sounds disingenuous as you sound more like an attorney than anything else. Why would anyone believe anything you are trying to plant here? You seem pretty motivated for someone with no opinion - and for someone "who likes to write comments to the newspaper", you seem to have been exercising considerable self control as I don't recall ever seeing your comments before.

NP is critical to our National Infrastructure and is an important piece of our national economic security. The NIMBY visual purists need to check their passports to see if it says American

Thanks for your reading of the 1881 statute, Publius. That tells me everything I need to know. Done here.

Wait - don't get discouraged! That's only my opinion, and frankly, the opinion of some jamoke like me who likes to write comments to the newspaper is completely unimportant. What matters is the judge's opinion, and I can never be that person.

Quite the contrary. I'm encouraged. Your reading of RSA 231:167 is wrong.

I'm interested in finding out why. Please explain.

The point Hodgson and Publius are missing is Northern Pass is not a "utility", it is a for-profit project. Public "utilities" are allowed to use a ROW, but not private entities. Why doesn't NP admit it lost, do the right thing for NH by cutting into the HQ profits (God forbid) and put it underground. As the opposition continually points out, it's not the need, it's the method that is the issue.

Hang on a minute. Utilities are usually private, for-profit enterprises. See FairPoint, for example.

Just to elaborate on my earlier response - utilities are generally privately-owned businesses. They operate like any other private businesses with one exception - because their products are usually delivered through a pipe or a wire to which they control access, they basically have a captive customer base and are not subject to competition. Since they are not subject to competition, the state established the PUC to regulate their prices. This has little to do with Northern Pass, but it should help explain what makes a utility a utility. Whether NP qualifies as a utility will likely be decided by either the SEC or a court. I suspect that their argument will be that since they are part of Northeast Utilities, the group that owns and operates electricity utilities in several states, they are simply expanding their capacity to serve their customers by securing new sources of inventory - i.e., electricity. Utilities are allowed to expand and grow just like other private businesses, and their argument may be persuasive to a judge, especially if the question is whether what they are doing is part of their core business as a regulated utility.

Mr. Hodgdon's argument that trucks routinely convey goods over public rights of way or easements, i.e., roads, seems off the point. The question is whether Northern Pass can bury its line on private property, the ground underneath the easement, which Northern Pass now appears to concede belongs fully to the Forest Society in the case of Rt. 3. (There will be other private owners with the same ownership rights on other parts of the 8-miles of roads that Northern Pass claims it can use, but the Forest Sociey can stand for the aggregate here.) And to shift the argument to whether or not the Forest Society is allowed to veto the undergrounding of Northern Pass on its land also seems to be off the central issue here. What is the central issue? Northern Pass is a private development project. Amendment 12-a of the NH state constitution denies the authority of eminent domain to private development projects. How does Northern Pass now qualify as a public need project? What entity has deemed it necessary for the public good, for reliabilty? Why does Northern Pass suddenly have the ability to use eminent domain now against an unwilling landowner when it could not do so before, which led to the two year delay in the project while it tried to purchase a new route? By Mr. Hodgdon's logic, why didn't Northern Pass just petition the state or towns to run its line down Coos County roads right after HB 648 was passed? On the lower part of the proposed route, why didn't Northern Pass just petition for the use of roads for the 90 miles where the PSNH easement is so narrow that it is forcing the project into rebuilding the existing lines on the edge of the ROW at much taller heights? To the average reader, the sudden ability of Northern Pass to use eminent domain when it could not do so before looks like a flimsy argument born of 11th hour desperation as the clock ticks away towards the February 2014 end-of-contract date with Hydro Quebec. At the very least, it will likely mire the project in years of litigation and cause whatever political support is left for this project to dry up entirely. New Hampshire citizens will not stand for any perceived weakening of the anti-Kelo Amendment 12-a that is intended to guarantee the sanctity of private property rights in this state. All elected officials understand that fundamental fact of life in New Hampshire. It will be interesting to see how Mr. Hodgdon answers the central question: What makes a private development project like Northern Pass eligible to take advantage of an eminent domain taking of roads in view of Amendment 12-a to the NH Constitution?

I think that you have misunderstood Mr. Hodgdon's explanation, and possibly the concept of a utility easement. If a public road is subject to an easement for benefit of utility companies in the distribution of their products, then the use of the property by a utility company to carry power lines is not a matter of eminent domain. That is because there is no need for a "taking" as the right of the utility company to use the land has already been granted. Simply put, even though you may own property that is crossed by a public highway, you have no right to tell the local electric utility that they cannot put up poles so they can string their wires along the side of the road as that right is incorporated into the easement that allows the state to install and maintain the road.

See MWO, above, and reply there, please.

How would you explain RSA 231:167 then? If utilities have some sort of pre-existing right to use road easements, as you claim, then why does the statute state that when a landowner’s property is affected by the utility lines, the landowner can seek eminent domain damages? The statutory scheme obviously contemplates that the landowner’s land is NOT subject to a pre-existing utility easement. If there were a pre-existing utility easement, why would the landowner get eminent domain damages when lines are installed above-ground or underground?

My reading of that statute (which is from 1881) is that it probably does not advance your cause, unfortunately. My read of that statute is that it identifies the selectmen, and by extension, the town, as the people who are liable in the event that a utility company goes beyond the authority granted by the easement. It equates damage to the landowner by the acts of the utility to the damages incurred when the selectmen mess up (they don't do that, do they? In our town, that's almost guaranteed.) when they lay out roadways. What is important is that the damages are awarded "as shall be legally and justly due." If the utility operates within the terms of the easement, then damages will probably not be legally or justly due.

"At the very least, it will likely mire the project in years of litigation and cause whatever political support is left for this project to dry up entirely."...Yep, that same kind of tactic probably added years to my I-93 commute..Sad.

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