Boards Debate Authority Over Freedom Forest

Freedom — August 24, 2006 — Who really is in charge of managing the Trout Pond Property? Although the selectmen and members of the Freedom Conservation Commission hashed it out Monday night at the selectmen’s meeting, the groups agreed to disagree on which board has the final authority over the property. They did agree to meet with representatives from all the contributing entities as soon as possible to discuss the issue, though.

Four members of the conservation commission told the selectmen they believed the conservation commission has the ultimate decision making power on management decisions of Trout Pond Property.

The conservation commission presented various state regulations supporting their point. The selectmen presented a legal opinion they received from their attorney Peter Malia, based on legal descriptions of how towns are run and warrant articles from 2004 and 2005.

The three selectmen said they believed the selectmen have the final say on any decisions made on the property, ultimately. The selectmen then presented the conservation commission with a letter with their lawyer Peter Malia’s opinion.

The letter also stated the chain of command started out with the forest advisory board, as a subcommittee of the conservation commission, handing its opinion up to the conservation commission, which would then give its opinion, which was under the ultimate authority of the board of selectmen.

“What is the legal argument for this,” conservation commission member Beth Earle asked the board. The board could not give an RSA on which their lawyer based his opinion.

The RSA the conservation commission quoted, RSA 31:112, said that the selectmen have ultimate authority over every piece of property in town except a town forest. Further, it said that the town forest is one of the only places where the conservation commission has the ultimate authority.

In New Hampshire, towns have to run as the state tells them to, said conservation commission member Theresa Swanick. “An RSA trumps everything else,” Earle said.

Selectman Donna Cupka disagreed, suggesting alternative interpretations of one of the RSAs.

Conservation chairman Katie Gove said the town voted to have the conservation commission manage the forest. The selectmen’s power is in appointing members of the conservation commission who are conservation minded. The forest advisory board is a subcommittee of the conservation commission and can be chaired by a member of the conservation commission.

She also said she disagreed with a phrase that appears periodically throughout the stewardship plan that she said was “added at the 11th hour. I did not see it in the last editing.”

The phrase says that the selectmen have the ultimate authority over the management of the town forest. Gove said she did not think Rodger Krussman of the Trust for Public Lands knew about the phrase, either. That phrase makes the document illegal, she said, because the selectmen cannot manage the town forest by law.

Selectmen’s chairman Les Babb said he had spoken with Krussman five or six weeks ago about that phrase.

“We put that phrase in there because we thought ultimate authority gave the board veto power, not day to day management,” Babb said.

Earle disagreed, saying she does not think Krussman feels that way anymore. The conservation commission had also gotten an opinion from Susan Slack, Legal Services Counsel with the New Hampshire Municipal Association. Krussman said Slack felt strongly that the selectmen do not manage the town forest. The selectmen then voted to provide copies of the lawyer’s opinion of Slack’s opinion, which was not shared with the public.

One way to solve the conflict between the two boards, Earle thought, was to amend the stewardship plan to remove the ultimate authority of the selectmen phrase throughout the document. The plan allows for the conservation commission to amend the document, she said.

There was also some disagreement on how to interpret warrant articles presented during the 2004 and 2005 town meetings. It could not be determined whether the 2005 warrant article rescinded authority given in the 2004 article. Gove said she did not realize until recently that the 2004 warrant article did not match the wording of a few lines of the stewardship plan.

The selectmen agreed that the conservation commission had management power over the Trout Pond property, but they said they also think they have the ability to overrule any decisions made by the conservation commission if they believe it is not doing its job correctly.

When selectman Jim Breslin asked Gove a specific question on how the conservation commission would respond to a request for use of the property by an ATV group, Gove and others said they were not there yet.

Because of the late hour, the inability of the two groups to agree, and the need to get other groups aware of the situation, both agreed to meet with representatives from the state Department of Resources and Economic Development (DRED), Land and Community Heritage Investment Program (LCHiP), the Green Mountain Conservation Group (GMCG), the Trust for Public Lands (TPL), and the Forest Advisory Committee (FAC).

Gove suggested just emailing everyone to make it easier than trying to get everyone in one place at one time. Ned Hatfield, after being quiet for the entire discussion, then said, “You’re crazy for not wanting to have them all here to be made aware of the decision. If you want it resolved, have the meeting.”

Babb said he wanted everyone involved from all the contributing organizations to find out if they even realize they signed a document that was potentially wrong. The veto power would only come into play if the selectmen felt the conservation commission was doing something outside of its bounds.

Boards change, Cupka said; checks and balances need to be maintained. Earle then suggested that because the RSAs do not allow for a three-tiered power structure that the selectmen could have the option of reporting the conservation commission to a state-level agency if their decisions were going against the easement.

“So, we will manage the forest the way we see fit?” Gove asked.

“And we will send you a letter if we think you’re really screwing up,” Babb said.

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