By DAMIEN FISHER, InDepthNH.org
The New Hampshire Supreme Court said the state is immune from legal consequences even after it was found to have created a nuisance for Gorham homeowners by opening an OHRV trail close to their properties.
Several homeowners have been fighting the state for years over the 2011 decision to open the Presidential Rail Trail to OHRVs. New Hampshire’s government is eager to open more trails to the vehicles encouraging tourism to the North Country region.
But the people who live there year-round have said the noise and pollution brought by the riders is ruining their homes, not to mention the aggressive and obnoxious behavior of some of the riders, according to some of the plaintiffs.
Attorney Arthur Cunningham, who represented the Gorham homeowners, said after seven years of litigation and five days of trial on the evidence which the Gorham neighbors won on the merits: “I’m dismayed the Supreme Court chose to find legalisms to avoid the law how OHRV trails must be sited.”
Abby Evankow, an advocate of the homeowners said: “In the course of trying to help them get these trails out of their neighborhood – I’ve met other residents in multiple towns around New Hampshire similarly disturbed by hundreds of OHRVs disturbing their once peaceful homes – Berlin, Stewartstown, Pittsburg, Henniker, Claremont, Groveton, Stratford, Columbia etc.”
She said the Attorney General argued, and state Supreme Court upheld, that the NH Bureau of Trails has Sovereign Immunity and does not have to follow its own laws for siting OHRV trails on state lands, nor be held liable for resulting nuisance.
Evankow continued: “The courts have ruled that state agencies are above the law. Those with political power win. The losers are the New Hampshire citizens the laws were written to protect. Where is the justice?”
Resident and plaintiff Audrey Albert said in past InDepthNH.org reporting that one trail user was trespassing and urinating in her yard and, when she asked him to leave, he told her, “If you don’t like it, why don’t you move? I’m here to ride.”
But the 2018 lawsuit brought by Albert and several other homeowners ended with a confusing win and loss. Grafton Superior Court Judge Lawrence MacLeod ruled the state violated their property rights, and that the homeowners are not entitled to any relief. The state Supreme Court issued a case order in the homeowner’s appeal last week backing up MacLeod’s decision to absolve the state of wrongdoing.
MacLeod’s trial included a visit to the properties followed by a three-day bench trial. By the end of the proceeding, MacLeod ruled that “[the State’] conduct in permitting OHRV use in Gorham resulted in noise, dust, and fumes that substantially and frequently interfered with the plaintiffs’ use and enjoyment of their properties, thereby effecting a taking of the plaintiffs’ property.”
But when it came time to decide what to do about the state’s actions, MacLeod ruled the homeowners have no recourse after a two-day trial on damages.
“[MacLeod] concluded that, although the plaintiffs had proven a taking of their property, they failed to demonstrate that they suffered any damages as a result, and they therefore were not owed ‘just compensation’ for the taking,” the Supreme Court Justices wrote in the case order.
At the heart of the case is the fact the State cannot be held liable for wrongdoing thanks to the sovereign immunity legal doctrine. Essentially, state government officials and agencies in an official capacity cannot be held liable for violating civil or criminal laws in state courts under the doctrine.
The plaintiffs tried to argue the State waived its immunity by violating the laws on OHRV siting decisions, but the Supreme Court found that was a stretch.
“[N]one of these provisions contain language recognizing a right of nearby property owners or residents to protection from the State from any nuisance created by the trail-siting decision,” the Supreme Court ruled.
Reporter Nancy West contributed to this report.