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Businesses, observatory remain at odds over rights on Mount Washington

Union Leader Correspondent

July 22. 2018 11:44PM
Shown on July 20, the Mount Washington Auto Road's Summit Stage Office shares space at the top of Mount Washington at Mount Washington State Park with the Sherman Adams Summit Building, background, and to the right, the Cog Railway. Wayne Presby, the Cog's owner, has proposed extending the tracks at the summit by 130 feet. (JOHN KOZIOL/UNION LEADER CORRESPONDENT)

MOUNT WASHINGTON — After asking New Hampshire Attorney General Gordon MacDonald for his opinion on who owns and operates what atop the highest mountain in the Northeast, the Mount Washington Commission now wants him to review the report before it is made public.

Meeting Friday morning at the Tip Top House, just below the 6,288-foot summit, the commission voted unanimously to make public the full report, including opinion, but to have MacDonald first review it. Should a commission member have a concern about the report, he or she has 10 days to make leadership aware, at which time the commission would likely hold a special meeting.

The report, which was prepared by the Attorney General on behalf of Senior Assistant Attorney General Allen Brooks, the commission’s legal counsel, was sought by the commission at its April meeting.

At that meeting, representatives of the Mount Washington Auto Road and the Cog Railway presented competing theories as to their respective rights.

Wayne Presby, who owns the Cog Railway, says both the auto road and the Mount Washington Observatory have violated the railway’s rights under an 1894 agreement. The auto road and observatory contend that Presby is in violation of a 2009 agreement under which the Cog and auto road pledged to contribute a portion from the sale of each ticket to the observatory.

Through its attorneys, the observatory has demanded that the Cog Railway pay all funds due and to continue to perform under the agreement until 2019, while an attorney for the auto road has called the Cog’s allegations “wholly without merit.”

Friday’s commission meeting began with a non-public session of members and Brooks. When the commission returned to public session about an hour later, Brooks advised members that “you can’t say anything about the meeting we had because it was attorney-client,” adding that the documents were similarly privileged.

Paul Fitzgerald, a commission member and an attorney whose law firm represents the observatory, made a motion to waive all privilege and to release all documents and discussion.

State Rep. Karen Umberger, R-Kearsarge, then introduced an amendment that the commission ask the attorney general to review what’s been done so far and to give the commission authority to make the releases. Brooks said the attorney general could provide a review in about a month.

Umberger’s amendment was approved by a 9-2 vote and Fitzgerald’s amended motion then passed, 11-0.

The commission also agreed to allow a portion of the attorney general’s report — a history of the ownership claims on Mount Washington — to be placed on the commission’s website as early as today.

Commission chairman Walter Graff, who represents the Appalachian Mountain Club, said the history was a “stellar” piece of research.

Although the AMC is also at odds with Presby, who earlier this year forbade the club from using a helipad on his property, Graff reminded fellow commissioners that there was much at stake.

“It’s really important and critical,” said Graff, that the commission “continues to work together,” adding that he was concerned that the members are “at odds at this moment.”

Business Outdoors Politics Mt. Washington

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