2012-405, Appeal of Thomas Morrissey & a.

of the proposed project because they misinterpreted the scope of our ruling in the permit, the Bureau and Counc il did not consider the total wetlands impact respondent, Town of Lyme (Town). The petitioners argue that, when issuing issuance by the Wetlands Bureau (Bureau) of a wetlands permit to the Environmental Services (DES) Wetlands Council (Council) affirming the and Judith Dupuis, appeal a ruling of the New Hampshire Depa rtment of Reynolds, John Chamberlain, John Quimby, Michael O'Donnell, and Robert Dorothy Sears, Reginald Rogers, Richard and Barbara Sanders, Patricia DALIANIS, C. J. The petitioners, Thomas Morrissey, Margaret Russell,

respondent. Robert F. Callaghan, Jr. on the brief, and Mr. Hawkins orally), for the Nelson Kinder + Mosseau PC, of Manchester (Christopher D. Hawkins and

p etitioner s. Michael and Christopher G. Aslin on the brief, and Mr. Aslin orally), for the Bernstein, Shuer, Sawyer & Nelson, P.A., of Manchester (Gregory E.

(New Hampshire Department of Environmental Services) APPEAL OF THOMAS MOR RISSEY & a.

No. 2012 - 4 05 Department of Environmental Services

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

was “incomplete at best, and mis - leading at worst,” because it did not address this single project,” and that the permit was based upon an application that “overall plan [wa]s to raise the [recreation] field and lower the pond as part of The petitioners moved for reconsideration, arguing that the Town ’ s

permit application, but granted the permit to add fill (“add - fill permit”). hearing on both applications. In December p. 2 2009, it d enied the after - the - fact petitioners objected to both. On October 21, 2009, the Bureau held a public and an application to add fill to the recreation area bordering the pond. The application to retain the two un permitted beaver pipes it had installed in 2007 Town submitted two applications to the Bureau: an after - the - fact permit applications to retain the unauthorized wetland impacts.” In July 2009, the wetlands on its property and the submission of after - the - fact permit “request[ing] the retention of a certified wetland scientist to delineat e the In July 2008, the Bureau issued a Letter of Deficiency to the Town,

water level to one foot three inches. Id. Shortly thereafter, the Town breached the controlling beaver dam, dropping the resulted in a water level of one foot seven inches on the local staff gauge. Id. The Town then lowered the two beaver pipes it had installed in p. 2 2007, which thus lowering the water level and increasing the size of the recreation area. release policy to maintain the water level at two feet on the local sta ff gauge, Morrissey I, 162 N.H. at 779. In 2008, the Town again changed its water installed two additional beaver pipes without first obtaining a permit. waters of the state.” RSA 482 - A:3, I(a) (Supp. 2012). In 2007, the Town structures in or on any bank, flat, marsh, or swamp in and adjacent to any required before one can “excavate, remove, fill, dredge or construct any Id. Un der RSA chapter 482 - A, the wetlands statute, a dredge and fill permit is Clay Brook and stabilize the water level at the natural mean high water mark. chapter 482 - A to install a beaver pipe through the controlling beaver dam in In 2006, the Town obtained a standard dredge and fill permit under RSA

water mark. Id. of the pond and wetlands, when the water level exceeds the natural mean hi gh the breaching of beaver dams, which had historically controlled the water level gauge. Id. Subsequently, the Town modified its water release policy to permit water mark for Post Pond corresponds to a level of three fe et on the local staff area. Id. In December p. 2 2004, DES determined that the natural mean high contiguous parcel with frontage on Post Pond, which is used as a recreation owns property on the e ast side of the Clay Brook wetlands as well as a west side of the Clay Brook wetlands. Morrissey I, 1 62 N.H. at 779. The Town Morrissey I. The petitioners own properties with frontage on Post Pond and the The following facts are drawn from the record and our opinion in

authority under RSA chapter 48 p. 2 2 - A. We vacate and remand. Morrissey v. Town of Lyme, 162 N.H. 777, 779 (2011) (Morrissey I) and DES ’ s p. 3 3

or unreasonable. preponderance of the evidence before it, that such order is unjust except for errors of law, unless the court is satisfied, by a clear order or decision appealed from shall not be set aside or vacated it shall be deemed to be prima facie lawful and reasonable; and the findings of the [Council] upon all questions of fact properly before sh ow that the same is clearly unreasonable or unlawful, and all party seeking to set aside any order or decision of the [Council] to Upon the hearing the burden of proof shall be upon the

541:1 p. 3 3 (2007), which provides: Our standard of review of the Council's decision is set forth in RSA

effects of water level changes.” This a ppeal followed. Council does not believe DES … ha[s] authority under RSA 482 - A over the “absent a specific reference in RSA 482 - A: p. 3 3, I(a) to ‘water level changes[,]’ the the purv iew of both the DES Wetlands Bureau and the Council” because, property. The Council also stated that “water level determination. . . is outside unreasonably interfere with the petitioners ’ use and enjoyment of their Town ’ s activity relative to the water level of Post Pond did not substantially and of the proposed project was barred in part by our finding in Morrissey I that the that the underlying permit application improperly omitted the wetlands impact authority over water level disputes.” It ruled that the petitioners ’ argument “[c]onsistent with the Supreme Court opinion and the Council ’ s lack of appeal of the add - fill permit. The Council dismissed the appeal in March 2012 and, in February 2012, the Town asked the Council to dismiss the petitioners ’ Morrissey I. Morrissey I was decided in December 2011 against the petitioners the Council. At their request, the appeal was stayed pending the resolution of In June 2011, the petitioners appealed the grant of the add - fill permit to

be addressed through the DES wetlands permit process. abutters from an activity over which DES has no authority [cannot] construction of a structure in wetlands.. . . [T]herefore [e]ffects to RSA 482 - A: p. 3 3, as it does not represent excavation, dredge, fill, or beyond the scope of the wetlands authority to regulate pursuant to Lyme.. . . [T]he effect of the change in water level of the pond, i s level in Post Pond – the water level is determined by the Town of DES wetlands regulations have no authority to control the water lower the wat er level in the pond by local determination. . .. The the level of the pond . . .. The Town has the authority to set and DES wetlands regulations have no authority relative to con trolling

activity relative to the water level of Post Pond. It explained: reconsideration, stating that DES l acked authority to regulate the Town ’ s all the wetlands impacts of the proposed project. The Bureau denied p. 4 4

if three elements are met: (1) the parties are the same or in privity 126 N.H. 266, 269 (1985) (quotation omitted). The doctrine applies been litigated in the first action.” Morgenroth & Assoc ’ s v. State, relitigating matters actually litigated and matters that could have “The doctrine of res judicata prevents the parties from

distinction between the two actions. Morrissey I. The Town respo nds that there is no meaningful advances a different cause of action from that in their petition in is not barred by res judicata or collateral estoppel because it to the issuance of the add - fill permit. They argue that their appeal erroneously determined that Morrissey I precluded their challenge On appeal, the petitioners argue that the Council

scheme. Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 773 (2005). light of the policy sought to be advanced by the entire statutory statutes in light of the legislature ’ s intent in enacting them, and in DaimlerChrysler Corp., 153 N.H. at 666. Our goal is to apply context of the overall statutory scheme and not in isolation. see fit to include. Id. Furthermore, we interpret statutes in the what the legislature might have said nor add words t hat it did not Town of Dalton, 153 N.H. 75, 78 (2005). We will neither consider face, its meaning is not subject to modification. Dalton Hydro v. 66 p. 4 4, 666 (2006). When the language of a statute is clear on its ordinary meaning. DaimlerChrysler Corp. v. Victoria, 153 N.H. possible, construe that language according to its plain and We first look to the language of the statute itself, and, if

to the wetlands council ’ s legal determinations”). the superior court correctly applied the de novo standard of review under RSA chapter p. 4 482 - A “would have been corrected. . . when bureau ’ s legal co nclusion” regarding DES ’ s scope of authority deferential rather than de novo standard of review to the wetlands p. 5 544 - 45 (2006) (alleged error “that the wetlands council applied a Conservation Comm ’ n v. N.H. Wetlands Council, 154 N.H. 529, plainly incor rect.” Id. (citation omitted); cf. Greenland clearly conflicts with the express statutory language. . . or if it is statute de novo and “will not defer to an agency ’ s interpretation if it (citations omitted). We review an agency ’ s interpretation of a we are not bound by an agency ’ s interpretation of a statute.” Id. expressed in the words of the statute considered as a whole, and (2012). “We are still the final arbiter of the legislature ’ s intent as . is not absolute.” Appeal of Town of Seabrook, 163 N.H. 635, 644 administration is entitled to deference,” “[t]he deference afforded. . interpretation of a statute by the ag ency charged with its Although “it is well established in our case law that an 5

impermissibly segmented application that separated “the Town ’ s According to the petitioners, DES issued the permit based upon an impact of the project proposed in the add - fill permit application. issued the add - fi ll permit without considering the total wetlands In their current appeal, the petitioners argue that DES

brackets omitted). enjoyment of their property.” Id. at 782 - 83 (quotation and substantially and unreasonably interfered with the use and allegations “f[e]ll short of demonstrating that the Town ’ s activity claims for private nuisance and unlawful taking because their 780. We affirmed the trial court ’ s dismissal of the petitioners ’ petitioners ’ enjoyment of their property. Morrissey I, 162 N.H. at nuisance and unlawful takin g because they interfered with the actions relative to the water level of Post Pond constituted a private relief. Id. at 784 - 8 p. 5 5. The petitioners also argued that the Town ’ s noting that they were merely an ill - pleaded request for mandamus paragraphs as advancing a request fo r declaratory judgment, beaver dam without a permit. Id. We declined to interpret these 303.05(j), the regulatory provision that allows the removal of a not rely upon New Hampshire Administrative Rule, Env - Wt require the Town to obtain a pe rmit under RSA chapter 482 - A and upon two paragraphs in the petition that alleged that DES must of mandamus as a request for declaratory judgment. We focused appeal, the petitioners asked us to interpret their request for a writ Ecological Area.” The trial court den ied mandamus relief and, on Town to obtain a permit to lower the water level of the Post Pond dredging or filling of Clay Brook Wetlands, [and] to require the asked the trial court “to order [DES] not to issue permits that allow require a permit.” Morrissey I, 162 N.H. at 784. The petitioners level in the Post Pond Ecological Area as a project which does not Act[,] ’ by classifying the Town of Lyme ’ s plan to reduce the water from the trial court that DES “violated RSA 482 - A [,] ‘The Wetlands merits. In Morrissey I, the petitioners sought a writ of mandamus decision in Morrissey I did not result in a final judgment on the We find that res judicata does not apply here because our

(1987) (quotation and brackets omitted). transaction in question.” Aubert v. Aubert, 129 N.H. 422, 42 p. 6 6 which relief could be claimed on the basis of the factual 343, 3 p. 5 53 (2004) (quotations omit ted). It “refers to all theories on regardless of the theory of recovery.” McNair v. McNair, 151 N.H. We have defined the term “cause of action” as “the right to recover, judgment on the merits. Gray v. Kelly, 161 N.H. 160, 164 (2010). in both instances; and (3) the first actio n ended with a final with one another; (2) the same cause of action was before the court 6

Post Pond, their petition in Morrissey I does not bar their present appeal. DES ’ s obligation to regulate the Town's activity relative to the water level of petitioners did not obtain a ruling on the merits, i.e., a determination as to too g eneral and too specific to permit mandamus relief. Because the for mandamus, leaving intact the trial court's ruling that the request was both In Morrissey I, we did not address the merits of the petitioners ’ request

as Res Judicata, 21 A.L.R. 3d 20 p. 6 6, 213 (1968). Annotation, Judgment Gran ting or Denying Writ of Mandamus or Prohibition

the merits of the application. writ of mandamus. . . where the judgment was not rendered upon courts have declined res judicata effect to judgments denying a judgment was rendered upon the merits, and in several cases the [i]t is axiomatic that the doctrine will not operate unle ss the

prohibition proceedings,” doctrine of res judicata is applicable to judgments in mandamus and Conway, 127 N.H. 593, p. 6 602 (1986). Although “[i]t is well settled that the require a particular result.” Rockhouse Mt. Propert y Owners Assoc. v. Town of him, a mandamus order may require him to address the issue, but it cannot “When an official is given discretion to decide how to resolve an issue before Petition of CIGNA Healthcare, 146 N.H. 683, 687 (2001) (citation omitted).

adequately afford relief. to the requested relief and no other remedy will fully and writ of mandamus only where the petitioner has an apparent right arbitrarily or in bad faith. This court will, in its discretion, issue a to vacate the result of a public official ’ s act that was performed perform a ministerial act that the official has refused to perform, or A writ of mandamus is used to compel a public official to

sought a writ of mandamus that did not issue. Res judicata does not apply here because the first action

of [the] proposed project.” permit after improperly considering “only a portion of the impacts project.” The petitioners thus argue that DES issu ed the add - fill the water level of Post Pond. . . are part and parcel of a single water table. . . and the Town's revision of its Water Policy to lower the recreation fields by adding fill to raise the fields above the the two issues together because “the Town's application to improve recreation fields.” They argue that DES should have considered from “the Town ’ s proposed addition of fill to raise the level of the lowering o f the water level of Post Pond and associated wetlands” p. 7 7

“remov[al]. . . or construct[ion of] any structures in. . . any waters of the state dams triggers DES ’ s authority under RSA 482 - A:3, I(a), which prohibits contend that the Town ’ s construction of beaver pipes and removal of beaver T own ’ s activity of lowering the water level in Post Pond. The petitioners that the Council erred in finding that DES lacks regulatory authority over the We therefore proceed to the merits of the appeal. The petitioners argue

grounds. See id. at p. 7 782. reje ction of the petitioners ’ private nuisance claim upon altogether different the judgment in Morrissey I. We mentioned it in passing and rested our fifth prong: the finding upon which the Town relies was far from essential to did not itself require a wetlands permit. The Town ’ s argument also fails on the the Town ’ s activity relative to the water level in the pond because the activity Rather, the question before us is whether DES properly declined to consider level of Post Pond above or below a certain level is not at issue in this appeal. the question of whether the Town is le gally obligated to maintain the water The Town ’ s collateral estoppel argument fails on the first prong because

value or enjoyment of property of abutting owners.” granted if it shall infringe on the property rights or unreasonably affect the II (2001). Pursuant to RSA 482 - A:11, II, “[n]o permit to dredge or fi ll shall be Post Pond, they cannot make a showing of infringement under RSA 482 - A:11, of the finding that the petitioners have no property rights in the water level of N.H. at p. 7 781 (quotations and brackets omitted). The Town argues that, because have the pond maintained above the natural low - water mark.” Morrissey I, 162 level above the natural low - water mark; nor do the petitioners have the right to court found that the Town is not legally obligated to maintain the p ond at a petitioners' private nuisance claim. In Morrissey I, we noted that “the trial court that we mentioned in Morrissey I when addressing the merits of the The Town argues that this appeal is precluded by a finding by the trial

Petition of Kalar, 162 N.H. 314, 320 - 21 (2011).

essential to the first judgment. opportunity to litigate the issue; and (5) the finding at issue was someone who did; (4) the party to be e stopped had a full and fair es topped appeared in the first action or was in privity wit h action resolved the issue finally on the merits; (3) the party to be the issue subject to estoppel is identical in each action; (2) the first relitigation of findings made by an administrative board when: (1) Under certain circumstances, collateral estoppel may preclude the

654 (quotation omitted, emphasis added). and determined in the prior action.” Appeal of T own of Seabrook, 163 N.H. at party to a prior action. . . from relitigating any issue or fact actually litigated The Town next invokes the doctrine of collateral estoppel, which “bars a p. 8 8

N.H. Admin. Rules, Env - Wt 302.04(a)(4), (17). If, when assessing this impact, decline to address – the total wetlands impact of the proposed project. See 4 p. 8 82 - A:3, I(a), the applicant must demonstrate – and consequently, DES cannot Pursuant to DES ’ s administrative rules, to obtain a permit under RSA

Admin. Rules Env - Wt 302.04(a)(4), (17). on the values and functions of the total wetland or wetland complex.” N.H. nearby wetlands and surface waters” and “[t]he impact of the proposed project include “[t]he relationship of the proposed wetlands to be impacted relative to [DES ’ s] jurisdiction.” N.H. Admin. Rules, Env - Wt 302.04. These factors assessing the impact of the proposed project to areas and environments under applicant has considered a number of factors “in the project's design in project, the applicant shall demonstrate by plan and example” that the Admin. Rules, Env - Wt 302.02. One criterion is that, “for any major or minor consider when evaluating a permit application under RSA 4 p. 8 82 - A: 3, I(a). N.H. DES ’ s administrative rules set forth a number of criteria that DES must

Id. (citations omitted).

purposes described in RSA 4 p. 8 82 - A:1. way the legislature has determined that DES shall carry out the statute. The permitting process described in RSA 482 - A:3, I, is the statute or conducted anywhere othe r than the places listed in the dredge and fill permits for construction activities not listed in the in and adjacent to state waters. DES is not authorized to grant construction activities in or on banks, flats, marshes and swamps DES is authorized to grant permits fo r certain enumerated

RSA 4 p. 8 82 - A:3, I(a). Indeed, DES ’ s permitting authority is limited to the activities enumerated in changes” from the activities listed in RSA 482 - A:3, I(a) requiring a permit. water level in Post Pond, the Counci l relied upon the absence of “water level In ruling that it lacked permitting authority over the Town changing the

RSA 4 p. 8 82 - A:3, effectuates the wetlands statute's purpose. Id. at 535. Greenland Conservation Comm ’ n, 154 N.H. at 534. The permitting provision, from the effects caused by dredging and filling within their boundaries.” 482 - A strongly indicates that the legislature intended it to protect wetlands. . . for the public good and welfare. RSA 482 - A:1 (2001). “[T]he title of chapter The purpose of the wetlands statute is to protect and preserve wet lands

claiming a change in water level as the purpose of the proposed excavation.” wetlands. . . could do so without obtaining a dredge and fill permit simply by in the wetlands statute, whereby “any land owner that wishes to drain DES lacks authority over changes in the water level, DES created a “loophole” without a permit from [DES].” According to the petitioners, by concluding that p. 9 9

application “appear[s] to be directly connected to a larger pending application.” on both applications. Moreover, the Bureau noted that the after - the - fact as the after - the - fact application to retain two beaver pipes: it held one hearing The Bureau considered the add - fill permit application at the same time

information for the Bureau to evaluate and, at worst, was detrimental. had a wetlands impact that, at best, was not supported by sufficient the record, however, the Town ’ s activity relative to the water level in Post Pond had to consider, the total wetlands impact of the proposed project. Based upon per mit. To obtain such a permit, the Town had to describe, and the Bureau retain sand placed on the beach,” the Town applied to DES for the add - fill “improve existing Town recreation facility athletic fields, the picnic area and to and reduce the cost of improvements to the Town ’ s playing fields.” In order to beaver dams to maintain that water level, “was done to expand the town beach maintaining the water level in Post Pond at two feet, and the breaching of dams to lower the water in Post Pond.” The Town admits that the policy of adopted a new water release po licy in 2008 “for purposes of breaching the project to add fill and had a bearing on its total wetlands impact. The Town omitted from the Town ’ s add - fill permit application, constituted part of the prac tice of lowering the water level in the pond. This practice, although The Bureau and Council erred when they declined to consider the Town ’ s

the pond.” Bureau noted that operating the beaver pipe “will impact on the water levels of Town obtained a permit under RSA 482 - A:3 to install a beaver pipe, and the water levels, is undisputedly within DES ’ s permitting authority: in 2006, the example, the installation of beaver pipes, which also results in changes in changes” as part of the total wetlands impact of the permitted activity. For levels, and DES would necessarily have to consider the “effects of water level activity within DES ’ s permitting authority may result in a change in water have “authority under RSA 482 - A over the effects of water level changes.” An in RSA 482 - A:3, I(a) to ‘ water level changes,’” the Bureau and Council do not The Council t ook the overbroad position that, “absent a specific reference

of it meaningless. See Appeal of Murdock, 156 N.H. 732, 736 (2008). interpret an administrative rule in such a way as to render a significant portion under RSA 482 - A:3. See N.H. Admin. Rules, Env - Wt 302.04(a)(8). We will not when evaluating a project proposal that falls within its permitting authority applicant must show, and DES cannot decline to consider, any such impact its impact “on, public commerce, navigation and recreation.” Nevertheless, an 482 - A:3, I(a) does not authorize DES to issue a permit for a project based upon the complex and multifaceted factors listed in Rule 302.04. For exam ple, RSA ill - served. Such a reading would also effectively nullify many, if not most, of authority would be severely curtailed and the purpose of the wetlands statute DES could consider only activity that itself requir es a permit, its regulatory p. 10 10

not the basis for the Bureau ’ s rulings. The record supports this conclusion. 303.05(j),” and on appeal, the Council expressly stated that this regulation was impoundments released without a wetlands permit pursuant to [Rule] 482 - A:3. It merely noted that “beaver dams may be removed and their pre dominantly upon what it perceived to be its statutory authority under RSA declining to consider the Town ’ s lowering of the water level, the Bureau relied regulations have no ability to control the water level in Post Pond.” In in certain circumstances, when the Bureau concluded that “DES wetlands 303.05(j), a provision that allows the removal of a b eaver dam without a permit Bureau improperly relied upon New Hampshire Administrative Rule, Env - Wt The petitioners argued before the Council and argue on appeal that the

for rehearing cannot be raised on appeal.”). see Appeal of Coffey, 144 N.H. 531, 533 (1999) (“Issues not raised in the motion shall be considered by the council.”), and in their motion for reconsideration, see RSA 482 - A: p. 10 10, IV - a (“Only those grounds set forth in the notice of appeal been preserved. The petitioners failed to raise it in their appeal to the Council, have procured a wetlands permit in order to remove these structures has not are not before us. As for beaver dams, any argument that the Town should beaver pipe in 2006 and to retain two beaver pipes in 2009. These applications pipes, we reject this argument. The Town did apply for a permit to install a obtain separate wetlands permits to re move beaver dams and install beaver permit application, the Bureau and Council should have required the Town to Insofar as the petitioners argue that, when considering the add - fill

to add fill to the recreation fields: the Bureau could not decline to consider it. notwithstanding, beaver activity, was part of the wetlands impact of the project Town, the Town ’ s practice of lowering the water level, together with, or dropped as a result of dam abandonment rather than any action taken by the activity within the scope of RSA 482 - A:3.” Even if the water lev el in the pond result of beaver dams becoming abandoned and derelict rather than “any the activities listed in RSA 482 - A:3 and because the water level dropped as a the Town ’ s activity relative to Post P ond because DES ’ s authority is limited to We disagree with the Town that the Council properly declined to consider

Bureau failed to consider the total wetlands impact of the proposed project. lowering of t he water level in Post Pond when issuing the add - fill permit, the (Emphasis added.) We conclude that, by declining to consider the Town ’ s quality or level ‘shall occur’ (or were authorized) as a result of this project.” appealed, the Bureau clarified that it merely found “that no changes in water quality or level shall occur as a result of this project.” When the pe titioners environments under [DES ’ s] jurisdiction” and that “[n]o changes in water proposal [wa]s the alternative with the least adverse impact to areas and approved the add - fill permit application, b ased in part on a finding “that th[e] will cause unnecessary destruction of wetlands.” At the same time, the Bureau It denied the after - the - fact permit application, having found that “the project p. 11 11

HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

remand to the Council for further proceedings consistent with this opinion. consider the tot al wetlands impact of the proposed project, we vacate and Because the Bureau misinterpreted RSA 482 - A:3, I(a) and did not

would be reasonable.” the conclusion that “permitting the Town to maintain a water level of 2.0 feet A:3 granted DES the authority to regulate water levels,” the record supports Accordingly, we need not address the Town ’ s argument that “even if RSA 482 wetlands impact of the proposed project. We answer in the negative. that itself may not require a wetlands permit but has a bearing on the total (adding fill), it may decline to consider a related ac tivity (setting water levels) application involving an activity that falls within the scope of RSA 482 - A:3 Rather, the issue before us is whether, when DES evaluates a permit pond by means of beaver dams and beaver pipes is not squarely before us. municipality's and DES ’ s authority, if any, to regulate the water level of a great water level of Post Pond at or above the natural low water mark. The scope of a that, as the claimed owner of the beaver dams, it has the authority to set the We note that this opinion does not address whether the Town is correct

Rule 303.05(j) is facially invalid because it conflicts with RSA 210:9 (20 p. 11 11). Council erred when it found that the petitioners waived this argument; and (3) acted unlawfully and unreasonably when it relied upon Rul e 303.05(j); (2) the We therefore need not address the petitioners ’ arguments that: (1) the Bureau