2012-705, Town of Newbury & a. v. New Hampshire Fish and Game Department & a.

granting summary judgment to the petitioners, Town of Newbury and Lake Development (CORD), appeal a decision of the Superior Court (Smukler, J.) Department (F&G) and New Hampshire Council on Re sources and CONBOY, J. The respondents, New Hampshire Fish and Game

attorney general, on the br ief and orally), for the respondents. Michael A. Delaney, attorney general (K. Allen Brooks, senior assistant

o n the joint brief), for petitioner Lake Sunapee Protective Association. McLane, Graf, Raulerson & Middleton, PA, of Concord (Gregory H. Smith

brief and orally), for petitioner Town of Newbury. Upton & Hatfield, LLP, of Portsmouth (Justin C. Richardson on the joint

NE W HAMPSHIRE FISH AND GAME DEPART MENT & a.

No. 2012 - 705 Merrimack

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

authorized by its governing statute to ap prove the [boat launch] project,” and petitioners. Referring to RSA 16 p. 2 2 - C:6, IV, t he court ruled that “CORD is not denied CORD’s motion and instead entered summary judgment for the RSA 162 - C:6. The respondents moved fo r summary judgm ent. T he t rial court other things, a writ of certiorari on the groun d that CORD’s decision violated T he petitioners then brought the instant proceeding, seeking, among

needs of conservation and public access under RSA 16 p. 2 2 - C:6. launch. CORD disagreed and found that the design properly balanced the a rguing, among other things, that CORD lacked authority to approve the boat design satisfied the goals under RSA 162 - C:6. T he petitioners objected, On April 2, 2012, CO RD held a meeting to consider whether F&G’s

permanent lighting fixtures. parking spaces, ser vicing a dual poured - concrete boat ramp, and installing included paving a portion of the lake frontage parcel, creating more than forty the boat launch. In p. 2 2009, F&G proposed a design for the boat launch, which the lead agency with respect to the design, construction, and maintenance of parcel to F&G, s ee RSA 162 - C:9 (Supp. 2012), wh ich thereafter function ed as CORD, s ee RSA 162 - C:6. CORD assigned management of the lake frontage 10:16, VII, and transferred management of all land acquired under the LCIP to In 1995, the legislature repealed R SA chapter 221 - A, see Laws 1995,

purchased the Wild Goose P roperty in November 1990. area.” With authorizati on from the Governor and Executive Council, the LCIP would be used for public boat launching on Lake Sunapee and as a picnic (lake frontage parcel). The application provided that the “lake frontage parcel Property.” A 3.3 acre parcel of the Wild Goose Property abut s Lake Sunapee approximately 135 acres of land in Newbury known as the “Wild Goose land owners. Id. In 1989, the LCIP received an application for it to purchase 1995). The LCIP was authorized to acquire land thro ugh negotiations with conservation and recreation importance.” RSA p. 2 221 - A:2 (Supp. 1987) (repealed acquiring land s and interests in lands of state wide, regional, and local character, natural resources, and high quality of life in New Hampshire by Investment Program (LCIP) to “preserve the natural beauty, landscape, rural undisputed. In 1987, the legislature established the Land Conserv ation The following facts are supported by the recor d or are otherwise

We reverse and remand. to RSA 16 p. 2 2 - C:6, IV, CORD has no authority to approve “new highway projects.” because it is a class III - a public highway and, according to the court, pursuant The trial court ruled that CORD lacked authority to approve the boat launch decision to approve F&G’s design of a boat launch. See RSA 162 - C:6 (2002). Sunap ee Protective Association, on the ir writ of certiorari challenging CORD ’s p. 3 3

construction of a new highway or portion thereof, construction of a turning lane, or similar adjustments, but shall not include easements, lane widening, the addition of a pa ssing, climbing, or under this section shall include drainage easements, slope highways. Permissible expansion, modification, or alterations acquired under the former RSA 221 - A [LCIP] adjacent to state department of transportation may obtain interests in lands approval b y [CORD], and notwithstanding RSA 162 - C:10, the existing roads within the state highway system. After re view and require minor expansion, minor modification, or minor alteration of the interest of public safety and welfare may, from time to time, Notwithstanding paragraphs I - III, [CORD] s hall recognize that

RSA 162 - C:6, IV provides:

162 - C:9. assignments, and reassign its responsibilities as it deems advisable. See RSA responsibilities to other state agencies or municipalities, review such in land from public trust is prohibi ted.” Id. CORD may, however, assign its (2002). “The sale, transfer, conveyance, or release of any such land or interest with the purp oses of [RSA chapter 162 - C] [is] permitted.” RSA 162 - C:10 interest in lan d so acquired [under the LCIP] to uses or purposes not consistent land in trust for the public’s benefit, “no deviation in the uses of any land or public access to s uch lands, where appropriate.” Because CORD holds LCIP as well as “maintain and protect benefits derived from such lands and maintain rural character, natural resources, and high quality of life in New Hamps hire,” III, CORD must manage lands “so as to preserve the natural beauty, landscape, with ownership interests in such lands.” RSA 162 - C:6, II. Under RSA 162 - C:6, [RSA chapter 162 - C] and consistent with agreements entered into with persons CORD is charged with managing land s “according to the provisions of

not in isolation.” Id. We review issues of statutory interpretation de novo. Id. “We also interpret a statute in the c ontext of the overall statutory scheme and have said or add language that the legislature did not see fit to include.” Id. from the statute as written and will not consider what the legislature might and ordinary meaning to the words used.” Id. “We interpret legislative intent p. 3 374 (2012). “When examining the language of the statute, we ascribe the plain considered as a whole.” Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365, a rbiter of the intent of the legislature as expressed in the words of the s tatute 162 - C:6. This presents an is su e of statutory interpretation. “We are the final approval of F&G’s design of the boat launch exceeded its authority under RSA The respondents argue that the trial court erred in ruling that CORD’s

were required to obtain legislative approval. The respondents appealed. that if the respondents wished to continue with the proposed boat launch, they p. 4 4

the boat launch. n ot construe section IV to limit CORD’s authority to approve F&G’s design of the lake frontage parcel would be used for public boat launching. Thus, we do which the Governor and Executive Council approved, specifically provided that set forth under RSA 162 - C:6, I - III. In fact, the original purchase application, Here, CORD has concluded that F&G’s design is consistent w ith the purposes IV only when it concludes that a project is outside the scope of RSA 162 - C:6. Further, CORD must seek approval from the general court under section

at any time. See RSA 162 - C:9. remains in the public trust, and CORD may reassign management of the parcel in any event, we disagree with such a reading. The lake frontage parcel as an “interest” under section IV, the petitioners do not press this point, and, implicitly found that CORD’s delegatio n of its management authority qualified has delegated its management authority to F&G. Although the trial court interest in LCIP land, and the petitioners do not so contend. Instead, CORD apply. There is no evidence in the record that F&G seeks to obtain a legal DOT’s place for purposes of applying section IV, the exception still does not undisputed that DOT is not an actor here. Even assuming that F&G stands in [LCIP] lands,” thereby removing such interests from the public trust. It is only when the department of transportation (DOT) seeks to “obt ain interests in prohibition against transfers of land from the public trust. It applies, however, lands pursuant to RSA 162 - C:6, I - III and an exception to RSA 162 - C:10’s Section IV is an exception to the statutory mandate that CORD manage

this interpretation. authorized by its governing statute to approve the project.” We disagree with and because a boat launch is statutorily defined as a highway, CORD is not trial court concluded that “[b]ecause this launch would be new construction, highways from any existing highway to any public water in this state.” The (2009), which provides that “[c]lass III - a highways shall consist of new boating foun d that boat launches are class III - a highways under RSA 229:5, III - a limited authority – they must be approved by the legislature.” The court then “clearly provides that new highway projects are outside the sc ope of CORD’s statutory authority to approve the boat launch. It found that RSA 162 - C:6, IV The trial court relied upon RSA 162 - C:6, IV in ruling that CORD lacked

approval from the general court. to be outside the scope permitted by this subdivision shall require parcel was originally protected. Projects determined by the council likely to materially impair the conservation purposes for which the alternatives exist nor if individual or cumulative approvals are Approval shall not be granted if reasonable and prudent bypass for an existing highw ay, or similar major alterations. p. 5 5

DALIANIS, C.J.