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Lawyer says Northern Pass in 'a corner'

New Hampshire Union Leader

May 17. 2013 11:58PM

CONCORD — Opponents of the Northern Pass hydroelectric project on Friday released a legal opinion supporting their view that the state cannot authorize use of its easement in the Connecticut Lakes Headwaters conservation area for the 1,200-megawatt power lines.

In a 15-page opinion posted on the website of the Society for the Protection of New Hampshire Forests, attorney Thomas N. Masland, with the firm of Ransmeier and Spellman in Concord, writes, “the express terms of the conservation easement deed prohibit the penetration of the Northern Pass project into, on or under land protected by the easement.”

The easement consists of 146,400 acres in Coos Country, with large tracts in Stewartstown and Clarksville, two communities near the Canadian border where Northern Pass has been trying to acquire properties and the forest society has been acquiring easements to block the project.

Two parcels acquired by Northern Pass in Stewartstown appear to touch each other on a small-scale map, but they are actually separated by a small strip of conservation land.

Jack Savage, spokesman for the forest society, said the passage through the conservation area separating the two Northern Pass parcels is “a very short distance.” Northern Pass partners may not have even realized the two parcels did not abut when they were purchased, he said.

“Northern Pass has yet to announce its intended route across Coos County, but recent land acquisition patterns indicate that a potential route approaches land that is subject to (conservation) easement,” wrote Masland.

The land is now owned by the Forestland Group, a forestry management company with holdings in the United States and internationally. The easement was granted to the state in 2003 by the Trust for Public Land, which was then the landowner. It’s managed by the Department of Resources and Economic Development.

The easement was purchased with private and public money, including federal funding through the Forest Legacy Program, and state funding through the Land and Community Heritage Investment Program (LCHIP) and a direct appropriation of the Legislature in 2002. Private funding included grants from private foundations and charitable organizations.

The Trust for Public Land worked with the Society for the Protection of New Hampshire Forests, the Nature Conservancy of New Hampshire and a coalition of supporters to raise about $42 million for the conservation project.

Widespread speculation

Savage said the forest society obtained the legal opinion and posted it now as a preemptive strike to an anticipated request from Northern Pass to DRED for a right of way, either above or under ground.

“There’s been widespread speculation that Northern Pass may make such a request, and we wanted to make it clear that there are no conditions under which the state could consider such a request,” he said. “We fully intend to defend that easement, and so this is part of our research and preparation, should Northern Pass attempt to penetrate the easement in some fashion.”

Savage said such an attempt is likely.

“If you look closely at the map, it’s their only option to make use of the $40 million they have spent on an intended route,” he said. “It’s the only possible way they can get out of the corner they painted themselves into.”

In his opinion, Masland cites portions of the 42-page easement deed that require the property to be maintained in perpetuity as open space “without any residential, industrial or commercial activity, except forest management.”

One of the use limitations in the deed specifically references towers, Masland wrote, while another prohibits any excavation.

Masland acknowledges that a section of the deed outlining the rights of the easement holder states that “No rights of way ... utility lines or other easements shall be constructed .. on, over, under or across the property without the prior written permission of the easement holder.”

That suggest the state could give permission for the power lines, although it could do so only if “the proposed construction is consistent with the purposes of the easement.”

Since one of the purposes is “benefit of the general public,” that could be interpreted to mean almost anything.

Michael Skelton, a spokesman for Northeast Utilities, declined to comment on the legal opinion or on any aspect of the proposed route until it is announced.

“We can say, however, that our new route was specifically designed to address the visual impact concerns with our original proposal,” he said. “We have always maintained that any new proposal will be respectful of property rights, legal restrictions, or easement agreements governing the land we are seeking to use.”

The landowners would need to make a formal request to the Attorney General’s office to evaluate the use of the state easement by Northern Pass, said Marc Goldberg, spokesman for Gov. Maggie Hassan. “Our understanding is that no such request has been made,” he said.

A spokesperson for the Attorney General’s office said they had not received any request from DRED regarding the easement.

The Forestland Group would not comment on whether a request for an easement by Northern Pass had been received or discussed.

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