Appeal of N. Miles Cook, III

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Wetlands Council
No. 2017-0142
APPEAL OF N. MILES COOK, III
(New Hampshire Wetlands Council)
Argued: November 16, 2017
Opinion Issued: May 4, 2018
Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael J. Tierney on
the brief and orally), for N. Miles Cook, III.
Gordon J. MacDonald, attorney general (Mary E. Maloney, assistant
attorney general, on the brief and orally), for New Hampshire Department of
Environmental Services.
LYNN, C.J. The petitioner, N. Miles Cook, III, appeals a ruling of the
Wetlands Council (Council) upholding the decision of the New Hampshire
Department of Environmental Services (DES) denying his request for a permit
to reconstruct and extend his dock on the Piscataqua River. We vacate and
remand.
The following facts were found by the Council, or are otherwise derived
from the administrative record. The petitioner owns property on the
Piscataqua River in Dover. In 2006, he obtained a wetlands permit to construct
“a tidal docking structure to serve his private residence,” which provides
“partial tide access.” In March 2015, the petitioner applied to DES for a permit
to reconstruct and extend the existing dock for the purpose of providing him
with “reasonable access to navigable water.” In his application, the petitioner
maintained that “[t]he existing dock . . . does not provide reasonable access to
navigable public water over more [than] half of the tidal cycle, and provides
problematic access during almost all of the tidal cycle.” As a result, he
contended that “a larger dock is needed” for him to reasonably exercise his
“access rights at this property.”
In October, DES denied the application, citing seven findings in support
of its decision. As relevant here, DES found that the petitioner failed to
demonstrate “need” pursuant to New Hampshire Administrative Rules, Env-Wt
302.01(a) and 302.04(a)(1) (respectively, Env-Wt 302.01 and Env-Wt 302.04)
because he “has an existing dock with partial tide access, a mooring in the
Piscataqua River in front of the subject property, and the ability to become part
of the Brickyard Estates Dockowner’s Association and use the all-tide access
dock on the abutting property to access his mooring.” In that same paragraph,
DES found that the petitioner’s “plan shows that there will be no more water
depth at the new proposed float location at 280’ from shore, than is available to
the applicant with his current 107’ dock.” It also determined that extending
the petitioner’s dock did not meet the “public good” requirement in Env-Wt
302.01(a) because the use of the community dock structure was available and
the community dock was “constructed to serve many users in one location and
thereby minimize impacts.”
The petitioner appealed to the Council. Following an adjudicatory
hearing and subsequent deliberations, the Council issued a decision denying
the petitioner’s appeal. In its decision, the Council noted that “[t]he central
issue in [the petitioner’s] appeal . . . is whether [he] could justify the expanded
dock proposal based on his ‘need’ to access navigable water on a more frequent
basis than he currently experiences with the existing dock.” The Council
explained that it was evenly split on whether the petitioner had met his burden
to demonstrate that DES acted unlawfully or unreasonably by finding that he
failed to prove that he had a “need” for the expanded dock within the meaning
of Env-Wt 302.01(a). The Council also evenly split their votes on whether the
petitioner had satisfied his burden of demonstrating that DES erred by finding
that “there was no more usable water at the proposed dock compared with the
existing dock.” The Council further explained that it was either “evenly divided”
or had not specifically voted on the issues raised respecting DES’s other
findings in support of denial.
Finally, the Council explained that its members “split their vote five in
favor, five against” whether the petitioner had met his burden to demonstrate
that DES’s decision was unlawful or unreasonable. Therefore, the Council
concluded that the petitioner did not meet his burden of demonstrating that
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DES erred by denying his permit because the petitioner “failed to convince a
majority of the Council that DES acted illegally or unreasonably.” The
petitioner’s motion for reconsideration was denied, and this appeal followed.
RSA chapter 541 governs our review of Council decisions. See RSA 21-
O:14, III (Supp. 2017). Under RSA 541:13 (2007), we will not set aside the
Council’s order except for errors of law, unless we are satisfied, by a clear
preponderance of the evidence, that it is unjust or unreasonable. The
Council’s findings of fact are presumed prima facie lawful and reasonable. RSA
541:13. In reviewing the Council’s findings, our task is not to determine
whether we would have found differently or to reweigh the evidence, but,
rather, to determine whether the findings are supported by competent evidence
in the record. Appeal of Michele, 168 N.H. 98, 105 (2015). We review the
Council’s rulings on issues of law de novo. Id.
On appeal, the petitioner argues that DES erred by requiring him to
demonstrate a need for an expanded dock because need is not required by RSA
chapter 482-A (2013 & Supp. 2017), which governs fill and dredge in wetlands.
Nonetheless, he maintains that, even if “need” is required, DES improperly
applied the need requirement in this case. The petitioner further argues that
“there were several procedural errors at the [Council’s adjudicatory] hearing
and deliberations.” Specifically, he contends that the Council erred by: (1) not
reaching a decision pursuant to RSA 482-A:10, VI (2013) because the votes
were split five to five; (2) allowing a council member to vote after attending only
part of the deliberations; and (3) failing to maintain a complete audio recording
of the adjudicatory hearing as required by RSA 541-A:31, VII (2007).
We begin by addressing the petitioner’s argument that DES erred by
requiring that he demonstrate a need to expand his dock as a requirement for
approval of his application. He contends that RSA chapter 482-A “does not
require an applicant to show ‘need’” and, therefore, the need requirement in
Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) impermissibly adds to the statutory
scheme. DES counters that the need requirement reflects the purpose of the
chapter as articulated in RSA 482-A:1 (2013), and was properly promulgated
pursuant to “RSA 482-A:11, which directs the Commissioner to adopt
reasonable rules to implement the purposes of” RSA chapter 482-A.
Resolving this issue requires us to engage in statutory and regulatory
interpretation. We review the interpretation of statutes and regulations de
novo. See Bach v. N.H. Dep’t of Safety, 169 N.H. 87, 91 (2016). We use the
same principles of construction when interpreting both statutes and
administrative rules. Id. at 92. When interpreting statutes, “we are the final
arbiters of the legislature’s intent, as expressed in the words of the statute
considered as a whole.” Petition of Sawyer, 170 N.H. 197, 203 (2017)
(quotation and brackets omitted). “We first examine the language of the
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statute, and, where possible, ascribe the plain and ordinary meanings to the
words used.” Id. (quotation omitted). “Our goal is to apply statutes in light of
the legislature’s intent in enacting them, and in light of the policy sought to be
advanced by the entire statutory scheme.” Id. (quotation omitted).
While the legislature may delegate to administrative agencies the power
to promulgate rules necessary for the proper execution of the laws, this
authority “is designed only to permit the [agency] to fill in the details to
effectuate the purpose of the statute.” Appeal of Wilson, 161 N.H. 659, 662
(2011) (quotation omitted). “Thus, administrative rules may not add to, detract
from, or modify the statute which they are intended to implement.” Id.
(quotation omitted). Moreover, agency regulations that contradict the terms of
a governing statute exceed the agency’s authority. Id.
RSA chapter 482-A as a whole regulates fill and dredge in wetlands. RSA
482-A:1 states the purpose of the chapter:
It is found to be for the public good and welfare of this state
to protect and preserve its submerged lands under tidal and fresh
waters and its wetlands, (both salt water and fresh-water), as
herein defined, from despoliation and unregulated alteration,
because such despoliation or unregulated alteration will adversely
affect the value of such areas as sources of nutrients for finfish,
crustacea, shellfish and wildlife of significant value, will damage or
destroy habitats and reproduction areas for plants, fish and
wildlife of importance, will eliminate, depreciate or obstruct the
commerce, recreation and aesthetic enjoyment of the public, will
be detrimental to adequate groundwater levels, will adversely affect
stream channels and their ability to handle the runoff of waters,
will disturb and reduce the natural ability of wetlands to absorb
flood waters and silt, thus increasing general flood damage and the
silting of open water channels, and will otherwise adversely affect
the interests of the general public.
Env-Wt 302.01(a) specifies that “[f]or tidal wetlands, need shall be
demonstrated by the applicant prior to department approval of any alteration of
tidal wetlands. No project shall be allowed that intrudes into a tidal wetland
unless the department finds it to be for the public good as set out in RSA 482-
A:1.”
We agree with the petitioner that the language of RSA 482-A:1 and the
accompanying statutes in the chapter do not specify need as a requirement for
applicants seeking a wetlands permit under RSA chapter 482-A. Viewing the
statutory scheme as a whole, however, we conclude that the need requirement
in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) is a reasonable rule for carrying
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out DES’s function, see RSA 21-O:1, II (2012), and that it does not conflict with
RSA 482-A:1. The purpose of RSA chapter 482-A is to “protect and preserve
[the state’s] submerged lands under tidal and fresh waters and its wetlands . . .
from despoliation and unregulated alteration.” RSA 482-A:1. The legislature
charged the commissioner of environmental services with adopting “reasonable
rules, pursuant to the rulemaking provisions of RSA 541-A, to implement” this
purpose. RSA 482-A:11, I (2013) ; see also RSA 482-A:2, I (2013).
Given the stated purpose of RSA chapter 482-A, see RSA 482-A:1, we believe
that it is reasonable for DES to require a permit applicant to demonstrate a
need for any alteration of those submerged lands and wetlands. In this way,
Env-Wt 302.01(a) merely fills in the details of RSA chapter 482-A to effectuate
the chapter’s purpose. See Appeal of Wilson, 161 N.H. at 662.
Nonetheless, the petitioner argues that even if need is a proper
requirement for obtaining a permit, DES erred by “applying the wrong
definition of need and improperly looking at offsite structures.” Relying upon
Appeal of Town of Nottingham, 153 N.H. 539 (2006), the petitioner contends
that the term “need” means “requisite, desirable, or useful,” and that both DES
and the Council erred by failing to apply a definition of need consistent with
this definition. (Quotation and bolding omitted.)
DES disagrees that need as used in Env-Wt 302.01(a) and Env-Wt
302.04(a)(1) should be defined as we defined it in Appeal of Town of
Nottingham. DES does not offer a clearly defined alternative meaning for the
term need, but contends that it “has consistently interpreted [need] in the
context of dock permits in a manner that reflects the purpose of the statute,
and also an applicant’s common law right to wharf out.”
In Appeal of Town of Nottingham, we interpreted the term “need” in the
context of whether an applicant seeking a large groundwater withdrawal permit
under RSA chapter 485-C, the Groundwater Protection Act, had made the
requisite showing of need as required by RSA 485-C:4, XII(b) (2001) (amended
2006) and DES’s rules. Appeal of Town of Nottingham, 153 N.H. at 553. The
version of RSA 485-C:4, XII in effect at that time directed DES to adopt rules
relating to “new groundwater withdrawals of 57,600 gallons or more in any 24-
hour period,” including “requirements relative to conservation management
plans which demonstrate the need for the proposed withdrawals.” Id.
(quotations and brackets omitted). In turn, former New Hampshire
Administrative Rules, Env-Ws 388.05 required the applicant to “prepare a
water conservation management plan and description of need to demonstrate
the efficient use of, and need for, the proposed withdrawal in the permit
application.” Id. (quotation omitted).
Noting that the legislature had failed to define “need” in RSA chapter
485-C, we looked to the plain and ordinary meaning of the term. Id. We
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concluded that the most relevant definition of “need” in Webster’s Dictionary is
“‘a want of something requisite, desirable, or useful.’” Id. (quoting Webster’s
Third New International Dictionary 1512 (unabridged ed. 2002)). Thus, we
held that RSA 485-C:4, XII(b) and former New Hampshire Administrative Rules,
Env-Ws 388.05 required DES to determine whether the applicant’s proposed
withdrawal was “requisite, desirable, or useful.” Id. (quotation omitted).
Similarly, here, DES has failed to define the term “need” in Env-Wt
302.01(a) or in Env-Wt 302.04(a)(1) governing requirements for an application.
See N.H. Admin. R., Env-Wt 101; see also N.H. Admin. R., Env-Wt 302.04.
When regulatory terms are undefined, we ascribe to them their plain and
ordinary meaning. See Appeal of Town of Nottingham, 153 N.H. at 555; see
also Petition of Hagenbuch, 169 N.H. 555, 560 (2017). As in Appeal of Town of
Nottingham, we conclude that the most relevant definition of “need” is “a want
of something requisite, desirable, or useful.” Webster’s Third New International
Dictionary, supra at 1512. Accordingly, Env-Wt 302.01(a) and, in turn, Env-
Wt 302.04(a)(1) require an applicant to demonstrate “a want of something
requisite, desirable, or useful” prior to approval of any project that alters tidal
wetlands. Id.
DES argues that we should not adopt the same definition of need for
Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) that we did in Appeal of Town of
Nottingham because RSA chapter 485-C and RSA chapter 482-A are two
“entirely different” chapters, and defining need as we did in that case “would
not be consistent with the purposes identified by the legislature in RSA 482-
A:1.” We are not, however, merely adopting the definition of “need” used in
Appeal of Town of Nottingham in a different context. Rather, as in Appeal of
Town of Nottingham, in accordance with our rules of statutory and regulatory
construction, we are ascribing to the term its plain and ordinary meaning as
found in the dictionary. See Appeal of Town of Nottingham, 153 N.H. at 555.
DES further contends that, given its “fair and consistent application of
guidelines,” the doctrine of administrative gloss supports its interpretation of
need. We disagree. “The doctrine of administrative gloss is a rule of statutory
construction. Administrative gloss is placed upon an ambiguous clause when
those responsible for its implementation interpret the clause in a consistent
manner and apply it to similarly situated applicants over a period of years
without legislative interference.” Appeal of Stewart, 164 N.H. 772, 776 (2013)
(quotation omitted). However, “a lack of ambiguity in a statute or ordinance
precludes application of the administrative gloss doctrine.” Anderson v.
Motorsports Holdings, 155 N.H. 491, 502 (2007). Here, the term “need” is not
ambiguous.
Because DES did not have the benefit of our interpretation of the term
“need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining
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whether an applicant has met the permit requirements, and because, as the
Council noted, the central issue was whether the petitioner “could justify the
expanded dock proposal based on his ‘need’ to access navigable water on a
more frequent basis than he currently experiences with the existing dock,” we
vacate DES’s decision and remand to the Council with instructions to remand
to DES for further consideration in light of the definition we have adopted
herein.
Although we have vacated DES’s decision, we nonetheless address the
petitioner’s argument that DES erred by determining that the petitioner failed
to demonstrate a need for the expanded dock because he could “use a dock on
a different property,” as the issue may arise on remand. See Axenics, Inc. v.
Turner Constr. Co., 164 N.H. 659, 673 (2013). In its denial of the petitioner’s
permit application, DES found that the petitioner failed to meet the need
requirement in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) because he “has an
existing dock with partial tide access, a mooring in the Piscataqua River in
front of the subject property, and the ability to become part of the Brickyard
Estates Dockowner’s Association and use the all-tide access dock on the
abutting property to access his mooring.” We agree with the petitioner that his
ability to use an all-tide access dock on an abutting property is not relevant to
whether he has demonstrated “need,” i.e., “a want of something requisite,
desirable, or useful,” for further access on his property. See Lakeside Lodge v.
Town of New London, 158 N.H. 164, 169 (2008) (“Littoral rights are incidental
property rights associated with ownership of lakeshore property.” (quotation
omitted)); Donaghey v. Croteau, 119 N.H. 320, 323 (1979) (“In New Hampshire,
the right to wharf out to navigable depth has long been recognized as a
common-law littoral right.”); see also Appeal of Michele, 168 N.H. at 103-04
(“Instead of altering the state of property rights under the common law, the
purpose of [RSA chapter 482-A] is to ‘protect and preserve the state’s
submerged lands under tidal and fresh waters and its wetlands from
despoliation and unregulated alteration.’” (brackets and ellipsis omitted)).
In light of our decision, we need not address the petitioner’s procedural
error arguments. Finally, any issues raised in the petitioner’s notice of appeal
or in his brief that are not adequately developed are deemed waived. See State
v. Blackmer, 149 N.H. 47, 49 (2003).
Vacated and remanded.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred; DALIANIS,
C.J., retired, specially assigned under RSA 490:3, concurred.
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