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Forest Society predicts Northern Pass land dispute will end up in court

New Hampshire Union Leader

August 13. 2013 8:00PM

MANCHESTER — Northern Pass attorneys said Tuesday that a state law would allow the controversial power project to get around objections from the Society for the Protection of New Hampshire Forests to bury power lines under roadways, but the forest society predicted a court fight if Northern Pass persists.

“Power lines have been an accepted use of the public right of way for well over 100 years going back to the advent of the electric light, literally,” said Mark Hodgdon, a former senior assistant attorney general who represented the state Department of Transportation in legal matters.

“Those power lines that run in front of our houses or along our roads are placed there because they’re an appropriate and accepted use of a public right of way, a public road, just as trucks and cars are,” said Hodgdon, who now is in private practice working for Northern Pass.

Jack Savage, the forest society’s vice president for communications and outreach, said Northern Pass using land the forest society owns or has an easement for would be taking private land, requiring the forest society’s permission.

“If Northern Pass attempts to use eminent domain, which is very evident they are attempting to do, there is a high likelihood it will end up in court,” Savage said.In an email, Northern Pass spokesman Martin Murray wrote: “Enough is enough. In the interest of honest debate, we call on SPNHF to stop raising the false specter of eminent domain.

“SPNHF is well aware of the facts, and yet they continue to ignore established law on this issue and to dismiss the public’s role in the permitting process,” he wrote. “No utility relies on the use of eminent domain in order to install facilities above ground or underground in a public road. SPNHF is suggesting that a public road is really not public, which is simply not supported by state law or decades of practice across New Hampshire.”

The Northern Pass project calls for 1,200-megawatt power lines to transport hydroelectric power from Quebec into the New England power grid, via New Hampshire.

The forest society owns part of the land under state-maintained Route 3 in Clarksville and has easements on some town-maintained roads where Northern Pass wants to bury lines. The forest society maintains it needs to give permission for transmission lines to go on property it controls.

Hodgdon cited RSA 231:160, allowing for telegraph, television, telephonic, electric lights, electric power poles and structures and underground conduits and cables to be installed in any public highways.

Savage, however, said: “Typically, when poles are put there, the local property owner doesn’t mind it, but it’s still effectively a taking (of land). The procedure as outlined by 231 allows the landowner to go to the licensing authority and ask for damages.”Hodgdon said that doesn’t give the forest society veto power.

“They do own the land under the road,” Hodgdon said. “I own the land under the road in front of my house. If you’re a homeowner, you probably do, too. It’s not uncommon. That isn’t to say that landowners get to approve what’s an appropriate use of the right of way. They don’t.”

Dana Bisbee, a former state deputy attorney general and current private attorney working for Northern Pass, agreed that there is a path toward getting the necessary state and local approvals.

“We know that we need permission to use the public roadways,” he said. “That permission will be sought through the SEC process.”

Hodgdon said an application would go through the standard review process from the highway design bureau and that information is then provided to the Site Evaluation Committee, made up of officials from various state agencies.

Former Public Utilities Commission chairman Doug Patch, who served as vice chairman of the Site Evaluation Committee, said he doesn’t expect the SEC to resolve the matter.

“If there’s an underlying land dispute, then the site committee doesn’t typically resolve land disputes between land owners and others who think they have rights to use of the land, presumably between a land owner and Northern Pass,” said Patch, who more recently represented wind-power developers before the SEC.

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