Discretionary Function and Sovereign Immunity in OHRV Trail Siting: A New Precedent in Property Nuisance and Inverse Condemnation

Introduction

The case of Lois Stearns & a. v. Town of Gorham & a., decided by the Supreme Court of New Hampshire on March 12, 2025, presents a multifaceted legal challenge involving issues of inverse condemnation, nuisance claims, and questions of sovereign and discretionary function immunity. The plaintiffs—homeowners located adjacent to recreational trails along United States Route 2 and the Presidential Rail Trail (PRT)—alleged that the defendants’ authorization to expand off-highway recreational vehicle (OHRV) trail use infringed upon their right to the peaceful enjoyment of their property by generating noise, fumes, and dust. In addressing these issues, the court examined legal doctrines that protect governmental decisions made in the exercise of discretion and analyzed statutory interpretations concerning state immunity.

Summary of the Judgment

The court’s decision affirms the trial court’s rulings in several key areas:

Preliminary Injunction: The plaintiffs’ request for a preliminary injunction to halt OHRV operation on local trails was deemed moot and properly denied.
Subpoena Quashing: The trial court’s orders to quash both deposition and trial subpoenas directed at Sarah Stewart, a high-ranking government official, were upheld based on established precedents limiting access to officials under discovery.
Sovereign Immunity: The nuisance claim against the State was dismissed on the basis of sovereign immunity. The court found that the statutory provisions in RSA chapter 215-A, which govern trail and OHRV use, do not waive immunity by implication for nuisance claims related to trail-siting decisions.
Discretionary Function Immunity: The nuisance claim against the Town was dismissed because the Town’s decision to authorize the OHRV trail, made after deliberation involving competing economic, social, and political factors, falls under discretionary function immunity.
Inverse Condemnation Claims: Although the trial court found that the defendants' actions amounted to a taking of property, the plaintiffs failed to prove damages, bar any award of just compensation, and effectively waived their challenge on appeals regarding permanent injunctive relief.
Attorney’s Fees and Costs: The appeals on the denial of attorney’s fees and costs were also rejected by the court.

Analysis

Precedents Cited

The judgment makes extensive use of established precedents that have shaped the retrieval of evidence and the application of immunity doctrines:

BOGAN v. CITY OF BOSTON (489 F.3d 417): This case underpins the decision to quash discovery requests involving high-ranking officials by establishing a standard which requires demonstration of firsthand knowledge that could not be otherwise provided. The court relied on Bogan to conclude that alternative witnesses, such as the former chief supervisor, could adequately supply the necessary information.
Avery v. Comm'r, N.H. Dep't of Corr. (173 N.H. 726): This decision was cited to reaffirm that questions of sovereign immunity, inherently involving subject matter jurisdiction, merit de novo review. It sets the framework for evaluating whether a statutory waiver of immunity exists.
STATE v. BROSSEAU and CHASSE v. BANAS: These cases demonstrate circumstances under which an implied waiver of immunity might be recognized. However, the present judgment distinguishes RSA chapter 215-A’s provisions from those cases, noting that there is no implied right to protection for nearby property owners against nuisances created by governmental trail-siting decisions.
Tarbell Adm'r, Inc. v. City of Concord (157 N.H. 678): This precedent was crucial in assessing whether discretionary function immunity should shield the Town from a negligent nuisance claim. The court emphasized the need to review such immunity claims in a light most favorable to the non-moving party but ultimately found that the Town’s decision involved high levels of discretionary judgment.
Mahan v. New Hampshire Department of Administrative Services (141 N.H. 747): The court clarified that the scope of Mahan’s ruling concerned express waivers of immunity and that the case did not adequately support the plaintiffs' argument regarding a de facto waiver under statutory duties.

Legal Reasoning

The court’s legal analysis is methodical and grounded in a careful reading of both statutory text and case law:

Sovereign Immunity Analysis: By dissecting RSA chapter 215-A—specifically sections 41 through 43—the court concluded that the statutory language, while comprehensive in regulating OHRV trail use, did not extend protection from nuisance claims. The strict construction of immunity waivers led to the affirmation that the State remains immune where explicit language asserting a right to redress for nuisance is absent.
Discretionary Function Immunity: Recognizing that rejecting or authorizing OHRV trail use involved a balancing of multiple competing interests (public safety, local economic development, and residents’ quality of life), the court held that the Town’s decision is inherently discretionary. This immunity is well-established in New Hampshire law, protecting governmental actions that fall within the realm of public policy-making.
Inverse Condemnation and Remedies: While the court concurred that the defendants’ decisions did create disturbances that amounted to a taking, the absence of demonstrable damages on the part of the plaintiffs meant that no “just compensation” could be awarded. The court’s analysis effectively separated the factual finding of a taking from the legal requirement to prove quantifiable harm.
Discovery and Evidence Management: In balancing the public interest against the need for litigants to obtain discovery, the court’s reliance on the Bogan standard highlights a cautious approach intended to prevent harassment of government officials, thereby upholding the proper boundaries of judicial inquiry.

Impact

The decision has several significant implications for future cases:

Guidance on Sovereign Immunity: The ruling reinforces that statutory provisions, unless expressly providing for a waiver, will not be read to override established sovereign immunity. This precedent will likely discourage similar nuisance claims against the State when based solely on statutory interpretation without an explicit waiver.
Protection for Governmental Policy Decisions: The affirmation of discretionary function immunity for municipalities emphasizes that decisions involving public policy, especially those concerning recreational land use or trail management, are shielded from judicial interference. Future challenges against such decisions by affected property owners may need to identify clear evidence of ministerial rather than discretionary conduct.
Limits of Inverse Condemnation Remedies: Parties seeking relief for regulatory actions that affect property use must account for both the requirement to prove actual damages along with overcoming immunity doctrines. The separation between a factual determination of a “taking” and a legal entitlement to compensation is now even more pronounced.
Discovery Constraints in Public Entity Litigation: The adherence to the Bogan standard will influence how litigants approach discovery involving high-ranking officials, encouraging the use of alternative sources of information rather than deposing top government personnel.

Complex Concepts Simplified

To aid understanding, here is a breakdown of some of the complex legal ideas discussed:

Sovereign Immunity: This is a legal doctrine that prevents the State and its agencies from being sued without their consent. In this case, even though the plaintiffs alleged that the State’s decisions caused a nuisance, the absence of an explicit waiver meant that the claim could not proceed.
Discretionary Function Immunity: This immunity protects government entities from lawsuits for decisions made as part of their policymaking functions. Because the Town’s authorization for OHRV use involved balancing multiple public interests, it was considered a discretionary action, thereby granting it protection from nuisance lawsuits.
Inverse Condemnation: This occurs when a government action is deemed to have effectively taken private property without formally exercising eminent domain. Even though the court found that the plaintiffs’ properties were adversely affected, they could not prove measurable damages to justify compensation.
Discovery Limitations: The Bogan rule limits the ability of litigants to depose high-ranking officials unless it can be shown that no other source exists for the needed information. This ensures that the litigation process is not misused to harass public officials.

Conclusion

In summary, the judgment in Lois Stearns & a. v. Town of Gorham & a. establishes a clear precedent reinforcing the boundaries of sovereign and discretionary function immunity in cases involving property nuisance and inverse condemnation. The court’s careful parsing of statutory provisions and precedents ensures that government decisions regarding public recreational trail use remain largely insulated from liability, unless clear statutory language provides otherwise. For future litigants, the decision serves as a cautionary reminder that claims against public entities must overcome substantial legal hurdles – notably, proving not only that a governmental decision caused harm, but also that sufficient damages exist to justify compensation, all while contending with robust immunity doctrines.

This ruling is significant in guiding the interpretation of state immunity in nuisance claims and in emphasizing the judicial deference afforded to policy-driven decisions by local governmental bodies.