Appeal of Morrissey
165 N.H. 87
N.H.2013Background
- Petitioners challenge a DES Wetlands Bureau add-fill permit issued to Town of Lyme for a recreation area adjacent to Post Pond and Clay Brook wetlands.
- DES denied reconsideration and Council upheld the add-fill permit, while rejecting consideration of the Town’s water-level changes as outside DES authority.
- Morrissey I (2011) held that the Town’s water-level activities did not substantially and unreasonably interfere with petitioners’ property, limiting DES’s authority over water level changes.
- Petitioners argued the add-fill permit should reflect total wetlands impacts, including water-level-related matters; the Council barred this argument citing Morrissey I.
- On appeal, the court reviews de novo statutory interpretation while giving deference to agency interpretations unless clearly incorrect; the court vacates and remands for consideration of total wetlands impact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DES may consider the total wetlands impact when evaluating the add-fill permit | Morrissey I precludes treating water-level actions as wetlands impacts. | DES’s authority under RSA 482-A:3 and Env-Wt rules allows consideration of total wetlands impact. | Yes; DES must consider total wetlands impact, including water-level changes. |
| Whether res judicata bars the current challenge | Morrissey I did not constitute a final merits judgment on the present claims. | The prior action resolved the claimed issues. | No res judicata; Morrissey I did not end on the merits for the present claims. |
| Whether collateral estoppel precludes relitigation of issues | Findings in Morrissey I on water level are applicable. | Collateral estoppel may apply if criteria are met. | Not applicable here; fifth prong not essential and issue distinction exists. |
| Whether the Council properly declined to consider water-level changes as part of the permit decision | Water-level changes affect wetlands and should be part of the permit analysis. | Water level changes fall outside the statutory scope if not tied to a permit. | Council erred; water-level changes are part of the total wetlands impact. |
| Whether the Bureau’s reliance on Rule Env-Wt 303.05(j) affects the decision | Rule 303.05(j) should have been basis to consider beaver-dam activity. | Rule 303.05(j) was not the basis for the Bureau’s ruling. | Not reached on this issue; remand required to address total wetlands impact. |
Key Cases Cited
- Morrissey v. Town of Lyme, 162 N.H. 777 (N.H. 2011) (central to limits of DES authority over water level changes; not final merits decision in Morrissey I)
- Appeal of Town of Seabrook, 163 N.H. 635 (N.H. 2012) (deference to agency statutory interpretation is not absolute; de novo review when language conflicts)
- Greenland Conservation Comm’n v. N.H. Wetlands Council, 154 N.H. 529 (N.H. 2006) (analysis of DES authority under RSA 482-A and applicable factors in Env-Wt rules)
- Petition of CIGNA Healthcare, 146 N.H. 683 (N.H. 2001) (mandamus relief and limits on requiring a particular result when discretion exists)
- Appeal of Murdock, 156 N.H. 732 (N.H. 2008) (interpretation of administrative rules and preservation of significant rule-based protections)