2005-552, STATE OF NH v. CITY OF DOVER

The defendants, the Cities of Dover and Portsmouth (cities),

A. Lemire on the brief, and Mr. Watson orally), for the defendants. Watson & Lemire, P.A., of Portsmouth (Thomas R. Watson and Jennifer

attorney general, on the brief and orally), for the State. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Maureen D. Smith, senior assistant

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-552 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the cities’ suits. That motion was granted in part and denied in part.

p. 2 from contamination, punitive damages, and costs.

defendant MTBE suppliers, distributors and manufacturers moved to dismiss this ruling to the United States Court of Appeals for the Second Circuit. The to state court. The district court denied the motions. The State has appealed

seek injunctive and equitable relief, compensatory damages for costs resulting

considered duplicative. remedies sought, and that separate suits by public water suppliers would be 2 around the country. Both the State and the cities moved to remand the cases

judgment that the cities’ MTBE suits must be dismissed because New

well as civil conspiracy and private nuisance. Both the State and the cities RSA 358-A:2 (Supp. 2005). The cities’ suits allege the same causes of action as unfair or deceptive business acts in violation of the Consumer Protection Act,

State, including the cities, informing them of the State’s suit, its purpose, Southern District of New York and consolidated with other MTBE cases from

The State brought this suit in superior court seeking a declaratory

2005). Methyl Tertiary Butyl Ether Products Liab., 379 F. Supp. 2d 348, 420 (S.D.N.Y.

A (2005) and 146-G (2005 & Supp. 2005); (5) trespass; (6) negligence; and (7)

attorney general distributed a memorandum to all public water suppliers in the polluted the State’s ground and surface waters. On October 16, 2003, the All three suits were removed to the United States District Court for the and gasoline designers, manufacturers and refiners alleging that MTBE had court against the same sixty-one defendants. November 19, 2003, the City of Dover filed a similar action in the superior distributors, including various in-state entities not sued by the State. On

distributors on a number of theories of liability,

failure to warn; (3) public nuisance; (4) strict liability under RSA chapters 146product liability for defective design; (2) strict product liability based upon The State’s suit alleged the following seven causes of action: (1) strict

general, brought suit in the superior court against thirty out-of-state MTBE

superior court against sixty-one MTBE and gasoline manufacturers and On October 24, 2003, the City of Portsmouth filed an action in the

governmental and private plaintiffs have sued MTBE producers and supplies, the water table and underground aquifers. Since 1990, numerous than other gasoline components, and thus spreads more easily into water

On September 30, 2003, the State, through the office of the attorney

pollution and strict product liability.

widespread in order to combat air pollution. MTBE, however, is more soluble Air Act of 1990, 42 U.S.C. §§ 7401-7671, addition of MTBE to gasoline became themselves and their property.

. . . nonage[,] idiocy[, or] lunacy . . . to take proper care of unable, on account of mental incapacity, whether it proceed from the right or responsibility to take care of persons who are legally Parens

legal disability.”

remedy suits. The trial court ruled that the State had concept of the “royal prerogative.” The royal prerogative included The parens patriae action has its roots in the common-law

only.” 2d 90, 96 (D. Mass. 1998).

Massachusetts v. Bull HN Information Systems, 16 F. Supp.

traditionally to the role of the state as sovereign and guardian of persons under “patriae literally means ‘parent of the country,’ and refers

Justices, 12 p. 3 3 N.H. 554, 560 (1983). (2002), and in caring for mentally incompetent persons, see Opinion of the interest in the welfare of children, In re Juvenile 2002-098, 148 N.H. 743, 747 State’s suit violates the cities’ constitutional right to a certain and complete patriae authority. We have, however, long recognized the State’s parens patriae motion for a declaratory ruling that they may concurrently maintain their We have never been asked to define the limits of the State’s parens

In re State (Bowman Search Warrants), 146 N.H. 621, 624 (2001). issues raised involve only New Hampshire law, we decide this case on state law trial court’s application of the law to the facts de novo. See id. “Because the See Benoit v. Test Systems, 142 N.H. 47, 49 (1997). Accordingly, we review the the facts are not in dispute, the issues before us are solely questions of law. The trial court decided the issue based upon stipulated facts. Because

and the separation of powers doctrine. N.H. CONST. pt. I, arts. 14, p. 3 37.

MTBE contamination suits; and (4) requiring the cities’ suits to yield to the court, asking the court to dismiss the cities’ cases. The cities filed a cross- by which the legislature has authorized and directed municipalities to bring defendants; ( p. 3 3) the ruling contravenes a comprehensive statutory framework, have a compelling interest in maintaining separate suits against the MTBE patriae standing; (2) even if the State has parens patriae standing, the cities reasons: (1) the State has not met the requirements for asserting parens On appeal, the cities argue the trial court’s ruling was erroneous for four

suit. the doctrine of parens patriae required the cities’ suits to yield to the State’s

On April 1, 2005, the State moved for a declaratory ruling in superior

sought an interlocutory transfer to this court, which we declined. Hampshire law requires that they yield to the State’s MTBE suit. The parties lying within its boundaries. The maximum public benefit shall

p. 4 subject clearly within the scope of the [State’s constitutional] police power.” statewide water supply. “The control and elimination of water pollution is a 4

responsibility to provide careful stewardship over all the waters

and well-being, both physical and economic, of its residents with respect to the and the defendant.”

its residents.” public benefit declares that it has the authority and The state as trustee of [the water of New Hampshire] for the

interest is reflected in RSA 481:1 (2001), which provides: Shirley v. Commission the injury to the public health and comfort [is] graphic and direct.”, 100 N.H. 294, 299 (1956). Moreover, the State’s

State.”

Here, the State has a quasi-sovereign interest in protecting the health must be sufficiently concrete to create an actual controversy between the State

Id.

preventing any injury or potential injury to the general health and well-being of Systems, 16 F. Supp. 2d at 97. “A state also has a quasi-sovereign interest in ‘substantial segment’ of its population.” category of quasi-sovereign interests broadly . . . .” Bull HN Information “Post- Snapp courts have generally interpreted the health and well-being

sovereign interest “in the abatement of public nuisances, instances in which Id. at 603-04 (quotation omitted). It indicated that States have a quasiquasi-sovereign interest in “the health and comfort of the inhabitants of a

the State has in the well-being of its populace. . . . A quasi-sovereign interest The Court in Snapp defined “quasi-sovereign” interests as “interests that

interests of particular private parties. Second, the state must allege injury to a must assert an injury to a ‘quasi sovereign’ interest, an interest apart from the parts. Bull HN Information Systems, 16 F. Supp. 2d at 96. “First, the state action. Courts and commentators have distilled the Court’s analysis into two circumstances under which a State has parens patriae standing to bring an In Snapp, the United States Supreme Court articulated the

Bull HN Information Systems, 16 F. Supp. 2d at 96 (citations omitted).

general economy of the state. and welfare of its citizens, interstate water rights, and the protect “quasi-sovereign” interests such as the health, comfort Today, it is a concept of standing utilized to allow the state to patriae has become a different and far broader sovereign power. Over time, the meaning of the doctrine has evolved, and parens

omitted). Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600 (1982) (quotation municipalities. p. 5 inconsistent with other decisions that have placed the burden upon

segment” test. population of New Hampshire. The State has clearly met the “substantial relief through the State’s suit. Placing the burden upon the State would be MTBE contamination has directly affected a substantial portion of the

their burden is discussed below. 914 F. Supp. 809, 813 (N.D.N.Y. 1996). Whether or not the cities have met (1953); 11 Cornwell Co., 695 F.2d at 40; People v. Peter & John’s Pump House,

See, e.g., New Jersey v. New York, 345 U.S. 369, 373-74

burden properly rests upon the cities to show that they cannot obtain complete approximately 40,000 private water supplies. This data demonstrates that the obtain complete relief through the State’s suit. However, we conclude that the the cities ask us to place the burden upon the State to prove that the cities will in an essentially private dispute.” N.Y. by Abrams v. 11 Cornwell Co., 718 F.2d 22 (2d Cir. 1983). Essentially, 695 F.2d 34, 40 (2d Cir. 1982), vacated on other grounds by People of State of through a private suit.” People of State of N.Y. by Abrams v. 11 Cornwell Co., patriae standing by showing that “individuals could not obtain complete relief substantial segment of its population.” The cities argue that the State must meet a third requirement for parens well in determining whether the State has alleged injury to a sufficiently

supplies, which corresponds to hundreds of public water systems and stipulated record, in 2002, MTBE was present in 13.2% of the statewide water interest: both categories ensure that the state is not standing in for individuals based upon contamination to all but one county in the State. According to the Here, the attorney general is suing for damages and injunctive relief

individual residents, the indirect effects of the injury must be considered as “Although more must be alleged than injury to an identifiable group of “the State must be more than a nominal party.” Snapp, 458 U.S. at 607. adversely affected in order for the state to have standing.” Id. at 99. However, definitive numerical threshold for the proportion of the population that must be people of the state. overall economic, recreational and social well-being of the Id. at 98-99. This test does not set forth “a

distinct from the requirement that the state demonstrate a quasi-sovereign Information Systems, 16 F. Supp. 2d at 98. “This element is not conceptually segment of the population is affected by the challenged conduct. Bull HN The second inquiry under Snapp is whether a sufficiently substantial

“sufficiently concrete” to be a “quasi-sovereign” interest. The State’s interest in protecting its waters from MTBE contamination is thus

enhancement of ecological and aesthetic values, and the be sought, including the assurance of health and safety, the p. 6 6

sought by the cities are subsumed by the State’s case. served by the State’s litigation and that the causes of action and remedies

court that this procedural difference between this case and interest in their respective municipal water supplies. We agree with the trial

could have sought intervention in the State’s suit.

material distinguishing factor. creatures of the state, which interest is not properly represented by the state.” State argues that the cities’ interest in protecting their public water supplies is his own right, apart from his interest in a class with all other citizens and New Jersey is not a also argue that, even if 152 N.H. 2 p. 6 60, 262 (2005). Instead, they filed separate suits based upon their

intervene in the suit, the cities seek to maintain separate suits. Here, the cities distinguishable from New Jersey because, unlike Philadelphia, which sought to Commonwealth of Pennsylvania was already a party. We first address the cities’ argument that the present case is

finding that the State’s action will adequately protect the cities’ interests. The the attorney general if the intervenor could show “some compelling interest in New Jersey is applicable here, the trial court erred in because the facts here are distinguishable from the facts in that case. They must be deemed to represent all its citizens.” The cities argue that the trial court erred in relying upon New Jersey

cities’ suits must yield to the State’s suit. not demonstrated a compelling interest in the litigation and ruled that the based upon the original jurisdiction of the Supreme Court, in which the Jersey] is applicable here.” The trial court then concluded that the cities had “the situations are sufficiently analogous that the reasoning advanced in [New Id. at 373. Applying this test to the instant case, the trial court found that,

The Court held that an intervenor may maintain a suit in the face of a suit by

that the state, when a party to a suit involving a matter of sovereign interest, stated that “the ‘ parens patriae ’ doctrine . . . is a recognition of the principle

the Court denied a motion by the City of Philadelphia to intervene in litigation articulated by the Supreme Court in New Jersey, 345 U.S. at 372-73. There, In dismissing the cities’ suits, the trial court relied upon the test

patriae standing, the cities may nonetheless maintain their suits. We turn next to the question of whether, given that the State has parens

defendants on behalf of the residents of New Hampshire. has parens patriae standing to bring contamination suits against the MTBE interest and that a substantial segment of the population is affected. It thus We conclude that the State has demonstrated both a quasi-sovereign accordance with individual damages. p. 7 to be managed by the attorney general instead of distributing it to cities in out that the State has promised to use any recovery to establish a public fund

municipalities.” We further agree with the trial court’s finding that: properly obtain judgment on behalf of the Cities and other affected

of regulating MTBE which are not applicable to the cities. The cities also point

themselves up to different defenses does not mean that the State is unable to

sought by the cities, and is subject to defenses based upon the State’s history 7 the State.”

the State have chosen to proceed on different theories and have thus opened

number of theories of liability alleged by the cities, fails to seek the remedies They argue that the State’s suit names own rights, nor does it show that their rights are not properly represented by fewer defendants, fails to allege a municipalities, such disparity does not present a compelling interest in their presented, that the State will not seek to obtain full MTBE pollution are greater in their water supplies than in those of other There is no reason for the Court to conclude, on the facts

compelling interest test.

We agree with the trial court’s finding that “the fact that the Cities and be represented by the state.”

separate litigation because the State’s suit does not represent their interests.

The trial court found that “while the cities contend that the levels of

Therefore, for the purposes of this appeal, we address the issue using the

interest is in fact different from that of the state and that that interest will not

The cities argue that they have a compelling interest in maintaining

fact finding.”

challenged the trial court’s application of the compelling interest test. Neither the State nor the cities have addressed the Higginson standard or

is not sufficient. The applicant for intervention must demonstrate that its representation. A minimal showing that the representation may be inadequate the cities here seek to do, must overcome the “presumption of adequate Higginson held that a person or entity seeking to maintain a separate suit, as

Id. at 739-40. Instead of applying the compelling interest test,

in avoiding cases which “require the Court to perform the unfamiliar task of for suits in other courts.” Id. This is because appellate courts have an interest full vitality for actions in the original jurisdiction of the Supreme Court but not been stated that the “‘compelling interest test’ announced in [New Jersey] has Defense Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C. Cir. 1979). It has only in appellate courts exercising original jurisdiction. See Environmental However, we note that the New Jersey compelling interest test may apply owned facilities. RSA 38:2, I, II (2000); p. 8 gas and water utilities in order to maintain and operate them as publicly

empower municipalities to take by eminent domain privately owned electric,

chapter 485 (2001 & Supp. 2005) (the Safe Drinking Water Act). chapter 485-C (2001 & Supp. 2005) (the Groundwater Protection Act), and RSA the cities point to provisions in RSA chapter 38 (2000 & Supp. 2005), RSA

use], upon petition to the superior court.” The purpose of RSA chapter 38 is to needed to protect the purity of water [that it supplies to the public for domestic power to take by the exercise of the right of eminent domain any property

State. a suit by the State. As evidence of this “comprehensive statutory framework,” for contamination of public water supplies in the face of such a suit by the

RSA chapter 485-C, as part of the alleged “statutory framework” giving The cities also point to provisions in the Groundwater Protection Act, sue for MTBE contamination. Under RSA 38:30 municipalities are granted “the

allow the cities to maintain MTBE contamination suits even in the face of such other in RSA chapter 38, however, explicitly authorizes municipalities to sue history only if the statutory language is ambiguous. 152 N.H. __, __ (decided November 16, 2005). Neither this provision, nor any

the doctrine of

The cities argue that RSA 38:30 (2000) confers upon them authority to

Comm’n, 152 N.H. 106, 108 (2005). cities argue that this statutory framework shows that the legislature intends to Lamy v. N.H. Pub. Utils. authorizes and directs municipalities to bring MTBE contamination suits. The the plain meaning of the words used in the statute and consider legislative to the State’s suit contravenes a “comprehensive statutory framework” that whole.” Appeal of Meunier, 147 N.H. 546, 548 (2002). We begin by examining intent of the legislature as expressed in the words of a statute considered as a “On questions of statutory interpretation, we are the final arbiter of the

In the absence of a showing of compelling interest by the cities, we hold that

State. demonstrate an interest that is not properly represented by the We next address the cities’ contention that requiring their suits to yield cities would desire, a difference of that nature does not

attorney general’s suit.

parens patriae controls and the cities’ suits must yield to the

the State’s suit. Thus, the cities’ interests are represented by the State’s suit. contamination to their water supplies, this economic interest is represented by While the cities may have a direct economic interest in recovering for

the compensation sought may not be the same as that which the compensation for all communities, including the Cities. While case.

p. 9 interest.” supplies.

caused it to be placed, in or near the water, in an action on the the expense of removal from the person who placed the same, or may remove [polluting] substance or fluid; and they may recover 9

an action on the case.

“general responsibility for groundwater management in the public trust and recover costs expended in the removal of pollutants from municipal water

charge of the water supply, or the proprietors of the water supply,

times the amount of actual damages sustained, to be recovered in municipalities. RSA 485:18 provides: See id. The provision does not give municipalities a cause of action

the face of such a suit by the State. Rather, it confers upon the State the RSA 485:18 applies in limited circumstances. It permits municipalities to municipalities should have the right to maintain MTBE contamination suits in the attorney general. Moreover, the Groundwater Protection Act clearly does not envision that

(2001), a criminal statute, which provides: general. municipal suits for MTBE contamination. The cities point to RSA 485:32

The health officer of the town, or the water commissioners having

shall also forfeit and pay to such water company, city or town 3 The cities argue that RSA 485:18 (2001) authorizes civil suits by person, or guilty of a felony if any other person, and such person to its inhabitants, shall be guilty of a misdemeanor if a natural

plaintiff). This provision does not authorize civil suits in the face of a suit by municipalities the power to sue for contamination of public water supplies. general may enter a nolle prosequi in a criminal case commenced by a private

See Bokowsky v. State, 111 N.H. 57, 58-59 (1971) (the attorney

However, criminal prosecutions are subject to the control of the attorney is part of the alleged “comprehensive statutory framework” authorizing

water company or of any city or town, used by it in supplying water Any person who shall willfully injure any of the property of any

the “first opportunity to institute programs” does not expressly confer upon first opportunity to institute programs for groundwater protection.” However, groundwater is primarily a local resource, cities and towns should have the The cities also argue that the Safe Drinking Water Act, RSA chapter 485,

Id.

cities rely specifically upon RSA 485-C:1, II (2001), which states: “Because municipalities the right and obligation to sue for MTBE contamination. The denial; promptly, and without delay; conformably to the laws. p. 10 that the relief sought is not obtainable by other existing legal remedies.” without being obliged to purchase it; completely, and without any

contamination in the face of such a suit by the State.

to recognize a new remedy where none existed before] must be a determination person, property, or character; to obtain right and justice freely,

authorizes the cities to maintain separate suits concerning MTBE access.”

courts.” municipal water supplies. guard against arbitrary and discriminatory infringements on access to the ruling deprives them of a certain and complete remedy for harm done to their without prejudice. separation of powers doctrine. First, the cities argue that the trial court’s Aranson v. Schroeder, 140 N.H. 359, 364 (1995).

(quotation omitted). “The analytical predicate to any consideration of [whether having recourse to the laws, for all injuries he may receive in his

Minuteman, LLC v. Microsoft Corp., 147 N.H. 634, 640 (2002) thirty days prior to commencing an action, a polluter. It is inconsistent with the cities’ claim that the statutory framework right, but is relative and does not prohibit all impairments of the right of

(quotation omitted). “The right to a remedy, however, is not a fundamental

Town of Nottingham v. Newman, 147 N.H. 131, 134-35 (2001)

“The purpose of this provision is to make civil remedies readily available and to prosecution of the action, or, as of right, dismissing the action violates their constitutional right to a certain and complete remedy and the including but not limited to joining the action, assuming sole as they deem necessary to ensure uniform statewide enforcement,

Every subject of this state is entitled to a certain remedy, by

(2001), municipalities seeking an injunction against pollution shall, at least responsibility for a case filed by a municipality seeking injunctive relief against Part I, Article 14 of the New Hampshire Constitution provides:

Finally, we address the cities’ contentions that the trial court decision commissioner of environmental services, who may take such steps

role for the State in protecting public water supplies. Under RSA 485:20 This provision squarely authorizes the attorney general to assume full

give notice of any such action to the attorney general and the

Moreover, another provision in RSA chapter 485 envisions a preemptive

for damages, not for costs expended in the removal of MTBE. to seek damages from MTBE contamination. In this case, the cities are suing guaranteed by the Constitution. p. 11 of litigation. Thus, the cities, through the State’s action, possess all rights argument, we need not address it further.

may also obtain relief through the State’s suit without controlling the strategy Because this argument is the foundation of the cities’ separation of powers already rejected the argument that a comprehensive statutory scheme exists. specifically authorizes municipalities to sue for MTBE contamination. We have

general, in her discretion, chooses to prosecute under that statute. The cities

comprehensive statutory scheme governing public water supplies that

The cities may still recover treble damages under RSA 485:32 if the attorney the State cannot adequately represent them and obtain a complete remedy. MTBE contamination. The cities have failed to show a sufficient reason why separation of powers doctrine because the legislature has crafted a BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred.

We hold that the cities’ MTBE suits must yield to the State’s suit.

are recovered. using damages recovered from MTBE defendants, if and when such damages statewide trust fund which the attorney general plans to create and oversee

represented by the State, and the State has brought suit to redress harms from that the attorney general’s assertion of paramount authority violates the powers doctrine. See N.H. CONST. pt. I, art. 37. Here, the cities seem to argue The cities’ second constitutional challenge is under the separation of

they will be denied a certain and complete remedy by the administration of a

they still have legal recourse in this case. Under our ruling, the cities are However, the cities are not denied their Article 14 right to a remedy because We assume without deciding that Article 14 applies to the cities.

fails to seek treble damages under RSA 485:32. Third, the cities argue that strategic control over the litigation. Second, they argue that the State’s suit remedy for three reasons. First, they argue that they have been denied The cities contend that they have been denied a certain and complete