RSA 215-A Does Not Imply Waive Sovereign Immunity for Nuisance Claims Over State OHRV Trail-Siting

1. Introduction

This appeal arose from a long-running dispute between Gorham homeowners (the plaintiffs/appellants) and government defendants— the New Hampshire Department of Transportation and the New Hampshire Department of Natural and Cultural Resources (collectively, the State), and the Town of Gorham (Town)—over the siting and authorization of seasonal off-highway recreational vehicle (OHRV) use on the Presidential Rail Trail (PRT) and a portion of U.S. Route 2. The plaintiffs alleged that OHRV traffic generated noise, fumes, and dust that substantially and unreasonably interfered with their residential use and enjoyment.

The litigation presented (and on appeal, largely narrowed to) four clusters of issues: (1) preliminary injunctive relief; (2) limits on deposing or calling a high-ranking state official (the DNCR Commissioner); (3) whether immunity doctrines barred nuisance claims against the State and the Town; and (4) what remedies were available after the trial court found a “taking” in inverse condemnation but awarded no damages and denied fees/costs.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited (and How They Shaped the Result)

A. Mootness of preliminary injunction appeal

The court treated the denial of preliminary injunctive relief as moot because final judgment had entered, adopting the merger principle described in Capriole v. Uber Technologies, Inc., 991 F.3d 339, 343 (1st Cir. 2021). The practical effect is procedural: once a case has been fully adjudicated, appellate review typically focuses on the final judgment, not the preliminary stage.

B. Depositions/trial testimony of high-ranking officials

Relying on Bogan v. City of Boston, 489 F.3d 417, 423-24 (1st Cir. 2007), the court endorsed a restrictive approach to discovery directed at “high-ranking government officials.” The standard requires the requesting party to show (1) the official has first-hand, claim-related knowledge and (2) the information cannot be obtained from other sources. The court then reviewed the trial court’s management decisions under the deferential “unsustainable exercise of discretion” rubric articulated in Kukesh v. Mutrie, 168 N.H. 76, 80 (2015), and found no prejudice where another official with relevant knowledge had already been deposed and testified.

C. Sovereign immunity and implied waivers

Sovereign immunity was treated as a subject-matter-jurisdiction question reviewed de novo under Avery v. Comm'r, N.H. Dep't of Corr., 173 N.H. 726, 732 (2020), and the State agencies were recognized as “cloaked” in the State’s immunity under Chase Home for Children v. N.H. Div. for Children, Youth & Families, 162 N.H. 720, 730 (2011), along with RSA 99-D:1 (2023).

The plaintiffs’ central doctrinal move was to argue that RSA chapter 215-A (specifically RSA 215-A:41–:43) waives sovereign immunity by “reasonable implication.” The court measured that claim against its implied-waiver line of cases, including:

• State v. Brosseau, 124 N.H. 184, 190 (1983) (implied waiver where statute clearly confers a right to redress injuries caused by certain State agents);
• Chasse v. Banas, 119 N.H. 93, 96-97 (1979) (statutory guarantee of humane treatment impliedly waived immunity for damages to vindicate denial of that right);
• State Employees' Ass'n of N.H. v. Belknap County, 122 N.H. 614, 621-22 (1982) (enforceable statutory right to benefits supported an implied waiver to recover those benefits).

Applying those precedents, the court held RSA 215-A:41–:43 sets procedural/administrative criteria for establishing trails (including considerations like decibel limits and compatibility) but does not grant nearby landowners a statutory “right” to be protected from nuisance impacts caused by trail-siting decisions. Because implied waivers are “strictly construed” (per Chase), the court refused to infer a waiver.

The court also rejected two attempted analogies:

• Mahan v. New Hampshire Department of Administrative Services, 141 N.H. 747 (1997) was deemed inapposite because it concerned an express waiver in RSA chapter 541-B and a discretionary function immunity exception to that waiver—not implied waiver under a different statute.
• Aranosian Oil Co. v. State of New Hampshire, 168 N.H. 322 (2015) (equitable jurisdiction to declare State action unconstitutional) did not help because the plaintiffs’ nuisance claim sounded in tortious interference with enjoyment, not a pleaded request for a declaration of unconstitutionality.

The court’s use of Cook v. Sullivan, 149 N.H. 774, 780-81 (2003) served to underscore nuisance as a tort framework with specific burdens of proof, reinforcing why it did not fit the Aranosian “unconstitutional action” equitable-relief pathway.

Finally, the court invoked Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) to reject any late-emerging attempt to recharacterize the case as a statutory-compliance claim under RSA 215-A: that theory was not pleaded or tried.

D. Municipal discretionary function immunity and the limits of the “municipal property” exception

New Hampshire’s discretionary function immunity survived the general abrogation of municipal immunity (per Hacking v. Town of Belmont, 143 N.H. 546, 549 (1999)). The planning/ministerial distinction was drawn from Maryea v. Velardi, 168 N.H. 633, 638 (2016) and Hacking.

On the record—public input, safety/noise concerns, and economic considerations—the Town’s approval/authorization was treated as a classic policy-planning decision involving “weighing competing economic, social, and political factors,” aligning with Hacking and supported by the discretionary examples collected in Tarbell Adm'r, Inc. v. City of Concord, 157 N.H. 678, 684 (2008).

Critically, the court limited Tarbell’s apparent exception—no immunity where a municipality’s use of its own property results in trespass or nuisance—by holding it inapplicable because the Town did not own the land where the trails were located. This is an important doctrinal narrowing: municipal involvement in authorizing activity on non-municipal land remains strongly protected when the decision is discretionary/policy-laden.

The court also relied on Rockhouse Mt. Property Owners Assoc. v. Town of Conway, 127 N.H. 593, 600 (1986) (high-order discretion in road layout decisions) and rejected an alleged inconsistency between interlocutory and summary judgment rulings by applying State v. Surrell, 171 N.H. 82, 88 (2018) (interpretation of trial court orders is a legal question).

E. Inverse condemnation remedies and waiver

The trial court found a taking (substantial/frequent interference via noise, dust, fumes) but awarded no damages; on appeal, challenges to the damages determination were abandoned at oral argument, triggering waiver under State v. Krueger, 146 N.H. 541, 542 (2001).

The plaintiffs’ attempt to pivot to permanent injunctive relief relied on DiMinico v. Centennial Estates Cooperative, Inc., 173 N.H. 150 (2020), but the court rejected the analogy: DiMinico involved injunctive relief for interference with quiet enjoyment in a landlord-tenant context, not inverse condemnation. The court also emphasized the plaintiffs’ own pretrial disclaimer that “inverse condemnation is not a basis for injunction,” treating that as an additional waiver-like bar consistent with Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662, 669-70 (2006).

The court’s closing observation—trail closure is “political” and beyond the court’s constitutional role—was read as reflecting separation-of-powers concerns embedded in immunity doctrines (citing Maryea and Chase) and, in any event, as nonessential dictum.

F. Attorney’s fees and costs

Fee denial was reviewed for unsustainable exercise of discretion under Arcidi v. Town of Rye, 150 N.H. 694, 704 (2004), and the bad-faith exception framework referenced Harkeem v. Adams, 117 N.H. 687, 690-91, 692-93 (1977). The court found the plaintiffs failed to cite record evidence of bad faith, and it noted mitigation steps by defendants.

Costs denial was reviewed under Van Der Stok v. Van Voorhees, 151 N.H. 679, 686 (2005), but the argument was deemed waived for inadequate development under State v. Blackmer, 149 N.H. 47, 49 (2003). The opinion also referenced Super. Ct. R. 45(a) (costs “as of course” to the prevailing party), underscoring that costs are not automatic when the applicant is not the prevailing party or fails to properly brief entitlement.

3.2 Legal Reasoning

The decision is best understood as a structured sorting of claims into (1) those that courts can reach on the merits and (2) those foreclosed by jurisdictional or prudential constraints. Three methodological features stand out:

• Jurisdiction first: Sovereign immunity was treated as a threshold subject-matter-jurisdiction barrier absent a statutory waiver, and implied waiver required a clear legislative intent to create an enforceable right and redress mechanism.
• Separation of powers through immunity doctrines: Both sovereign immunity (State) and discretionary function immunity (municipal planning/policy) are framed as tools to prevent courts from substituting their judgment for executive/legislative choices, particularly where contested policy balancing is evident.
• Issue preservation controls remedies: Even where a “taking” was found below, the Supreme Court emphasized procedural waiver (abandoning damages issues at argument; disclaiming injunction below), limiting appellate relief to what was properly preserved and pleaded.

3.3 Impact

This opinion is likely to matter most in three recurring contexts:

• OHRV trail disputes against the State: Plaintiffs seeking nuisance-based injunctive or damages relief against State agencies will face a reinforced sovereign immunity barrier. RSA 215-A’s trail-establishment criteria, without explicit rights-creating language, will not be treated as an implied waiver.
• Municipal participation in State land decisions: Town approvals connected to trail siting/operation on State land are strongly positioned as discretionary policy acts protected by immunity, and plaintiffs cannot invoke the Tarbell “municipal property use” nuisance/trespass exception unless the municipality owns/uses the property at issue.
• Litigation strategy and discovery: The court’s approval of Bogan-style restrictions signals that parties should build factual records through lower-level personnel and documents, and be prepared to demonstrate necessity before seeking testimony from agency heads.

A practical consequence is channeling: affected homeowners may be pushed toward political/administrative avenues (legislative change, agency engagement, municipal processes) rather than tort-based nuisance suits against government actors—unless and until the Legislature provides a clearer waiver or cause of action.

4. Complex Concepts Simplified

• Sovereign immunity: A rule that courts cannot hear suits against the State (or its agencies) unless the State has waived immunity by statute. Without a waiver, the court lacks jurisdiction.
• Waiver “by reasonable implication”: Even if a statute does not say “the State can be sued,” courts may infer waiver if the statute clearly grants an enforceable right and contemplates judicial redress. Here, RSA 215-A regulated trail siting but did not create a nearby-owner right to be nuisance-free.
• Discretionary function immunity: Municipalities are immune from suits challenging policy/planning decisions requiring judgment and balancing (e.g., safety, economics, community impacts). They are less protected for “ministerial” tasks that are purely mechanical or mandatory.
• Nuisance (private nuisance): A tort claim alleging a substantial and unreasonable interference with the use and enjoyment of land (often noise, odors, dust).
• Inverse condemnation: A claim brought by a property owner alleging the government has effectively taken property rights without formally condemning the property; the usual remedy is “just compensation.”
• Mootness: Courts do not decide issues that no longer matter. Once a final judgment enters, an appeal of a preliminary injunction denial usually no longer has independent significance.
• “High-ranking official” deposition doctrine: Courts limit depositions of agency heads unless the party shows unique first-hand knowledge and no alternative sources for the information.
• Issue waiver/preservation: Appellate courts generally decide only issues properly raised and maintained. Concessions at oral argument or disclaimers below can forfeit relief.

5. Conclusion

The Supreme Court of New Hampshire’s order in Lois Stearns & a. v. Town of Gorham & a. consolidates several doctrines that collectively limit judicial remedies against government actors in recreational trail-siting conflicts. The court held that RSA 215-A:41–:43 does not impliedly waive sovereign immunity for nuisance claims against State agencies, that a town’s policy-laden authorization decisions are protected by discretionary function immunity (with the Tarbell exception confined to municipal property), that discovery aimed at agency heads is constrained under Bogan, and that remedies on appeal will be curtailed by waiver and pleading choices. The decision’s broader significance lies in its reinforcement of separation-of-powers boundaries: absent clear legislative authorization, courts will not convert trail-siting disputes into tort liability or injunctive control over government policy choices.