UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Catherine R. Judd, Executrix of the Estate of Ruth A. Hunt, Gregory W. Hunt, Individually and as Trustee of the William W. Hunt Inter Vivos Trust U/T/A Dated 11/7/1987, and William C. Hunt, Plaintiffs
v. Case No. 16-cv-27-SM Opinion No. 2016 DNH 159 Southeast Land Trust of New Hampshire, City of Dover, New Hampshire and Tom Vilsack, Secretary of the United States Department of Agriculture, Defendants
ORDER TO SHOW CAUSE
The parties are at odds with respect to potentially
conflicting interests in the same property, although it is not
entirely clear that an actual and ripe case or controversy
exists. In 2007, plaintiff William C. Hunt and his wife granted
the Strafford Rivers Conservancy (“SRC”), 1 the City of Dover, and
the United States Department of Agriculture (“USDA”), a
Conservation Easement Deed over the Hunt Family Farm, located in
Dover, New Hampshire (the “Conservation Easement”). The
Conservation Easement prohibits subdivision of the parcel.
1 The SRC later merged with defendant Southeast Land Trust of New Hampshire (“SLT”). 1 Subsequently, plaintiffs Catherine R. Judd, Executrix of the
Estate of Ruth A. Hunt (“Judd”), and Gregory W. Hunt,
individually and as Trustee of the William W. Hunt Inter Vivos
Trust (“Gregory Hunt”), brought an unrelated lawsuit against
William C. Hunt. That suit was settled when the parties
executed an agreement that, in part, gave Judd and Gregory Hunt
a contingent use easement to engage in agricultural activities
on a specified area of the same Hunt Family Farm (the “Use
Easement”). The settlement agreement conditioned William C.
Hunt’s grant of the Use Easement on the prior approval of the
holders of the existing Conservation Easement. But the
Conservation Easement grantees declined to approve the Use
Easement because, in their opinion, the proposed Use Easement
would interfere with their existing conservation rights in the
land.
Plaintiffs subsequently filed this action, seeking, in
part, a judgment declaring that the proposed Use Easement does
not conflict with the existing Conservation Easement.
Defendants, the Conservation Easement grantees, moved to dismiss
on grounds that plaintiffs lack standing to bring the action. 2
Plaintiffs object.
2 Defendant’s motion does not distinguish between various plaintiffs, and argues that all plaintiffs lack standing, 2 Background
The relevant facts, drawn from the plaintiffs’ complaint
are as follows. On July 17, 2007, William C. Hunt, and his
wife, Nancy, granted the SLT, USDA and City of Dover a
Conservation Easement Deed over the Hunt Family Farm, located on
Back Road, in Dover. Compl. ¶ 11. The deed recites, in
pertinent part, that:
The Property shall not be subdivided or conveyed in any form in separate parcels. The Grantor further covenants and agrees not to undertake any action that would have the effect of subdividing or conveying any part of the Property.
Id. at ¶ 12.
On May 24, 2010, Judd and Gregory Hunt filed suit against
William C. Hunt (the “Trust Suit”), id. at ¶ 13, in which they
sought the return of the Hunt Family Farm, the family farm
house, and an adjacent lot located at 281 Back Road, as well as
funds paid to William C. Hunt and Nancy Hunt by the SLT, USDA
and the City of Dover in exchange for the Conservation Easement.
The parties mediated their dispute and settled the Trust Suit.
As part of the settlement, William C. Hunt agreed to delineate
because they are not parties to the Conservation Easement deed, apparently seeing the case as one challenging the scope or effect of the Conservation Easement. At oral argument on their motion, however, counsel for Southeast Land Trust seemingly agreed that William C. Hunt, the grantor, has standing, presumably because he granted the Conservation Easement. 3 an area of the Hunt Family Farm with respect to which he would
grant an easement to Judd and Gregory Hunt, permitting them to
“engage in agricultural activities,” or to farm the land. The
necessary lot line adjustments, including the Use Easement
Delineation Line, were approved by the City of Dover Planning
Board, and the City of Dover, and were recorded. Compl. ¶¶ 16,
17.
On November 13, 2012, Judd, Gregory Hunt and William C.
Hunt finalized the settlement agreement in the Trust Suit. The
terms of the settlement agreement obligated William C. Hunt to
grant a contingent Use Easement, appurtenant to the lots located
at 281 Back Road and 295 Back Road, over that portion of the
Hunt Family Farm delineated on the lot line adjustment plans
approved by the City of Dover and recorded. The agreement
provided:
d. Approvals Required. The parties agree and understand that the grant of the Use Easement herein contemplated requires the [prior] approval of the Strafford Rivers Conservancy (“SRC”) 3 and the United States Department of Agriculture (“USDA”) as holders of the Conservation Easement. The Parties agree that they will work together, as necessary, to obtain such approvals in good faith. In the event that the approvals are not granted by the foregoing agencies, the parties will implement an alternative plan as set forth in section 3 hereof.
3 The SRC later merged with the Southeast Land Trust. 4 Id. at ¶ 19. Section 3 of the agreement provides:
Creation of Leasehold. Only in the event that approval of the Use Easement as set forth in Section 2.d above is denied by the SRC and/or the USDA, [William] and Nancy Hunt shall execute a Land Lease.
Def.’s Mot. to Dismiss ¶ 11. 4 The plaintiffs say it was their
intent that the lease would mirror the terms of the proposed Use
Easement. Compl. at ¶ 19.
William C. Hunt executed a Use Easement deed, as required
by the settlement agreement, which provides:
The GRANTEES shall have, and the purpose of this Easement is to allow the GRANTEES, their heirs, successors and assigns, a non-exclusive right to conduct any and all agricultural activities (the “Use”) not otherwise prohibited by the Conservation Easement granted by GRANTORS to The Strafford Rivers Conservancy, Inc., the United States of America, and the City of Dover collectively as Grantees . . .
Compl. at ¶ 22. The Use Easement deed was not recorded. Id.
On January 20 and February 28, 2013, SRC informed the plaintiffs
that it would not approve the proposed Use Easement because, in
its view, the Use Easement would constitute a “subdivision,”
4 In determining whether a plaintiff has sufficiently alleged standing to sue, a court may consider materials outside the pleadings. Conservation Law Found., Inc. v. Plourde Sand & Gravel Co., No. 13-CV-214-SM, 2014 WL 5781457, at *3 (D.N.H. Nov. 6, 2014) (citing Gonzalez v. United States, 284 F.3d 281, 287–88 (1st Cir. 2002). 5 which the Conservation Easement precluded. Defendants,
plaintiffs say, are unreasonably and unlawfully withholding
their approval because their opinion is incorrect — the proposed
Use Easement does not create a “subdivision” as defined by New
Hampshire law or as contemplated by the Conservation Easement.
Defendants having declined to consent to the Use Easement,
Judd, Gregory Hunt and William C. Hunt attempted to negotiate
the terms of a lease, as provided for in Section 3 of the
settlement agreement. However, plaintiffs allege, defendants
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Catherine R. Judd, Executrix of the Estate of Ruth A. Hunt, Gregory W. Hunt, Individually and as Trustee of the William W. Hunt Inter Vivos Trust U/T/A Dated 11/7/1987, and William C. Hunt, Plaintiffs
v. Case No. 16-cv-27-SM Opinion No. 2016 DNH 159 Southeast Land Trust of New Hampshire, City of Dover, New Hampshire and Tom Vilsack, Secretary of the United States Department of Agriculture, Defendants
ORDER TO SHOW CAUSE
The parties are at odds with respect to potentially
conflicting interests in the same property, although it is not
entirely clear that an actual and ripe case or controversy
exists. In 2007, plaintiff William C. Hunt and his wife granted
the Strafford Rivers Conservancy (“SRC”), 1 the City of Dover, and
the United States Department of Agriculture (“USDA”), a
Conservation Easement Deed over the Hunt Family Farm, located in
Dover, New Hampshire (the “Conservation Easement”). The
Conservation Easement prohibits subdivision of the parcel.
1 The SRC later merged with defendant Southeast Land Trust of New Hampshire (“SLT”). 1 Subsequently, plaintiffs Catherine R. Judd, Executrix of the
Estate of Ruth A. Hunt (“Judd”), and Gregory W. Hunt,
individually and as Trustee of the William W. Hunt Inter Vivos
Trust (“Gregory Hunt”), brought an unrelated lawsuit against
William C. Hunt. That suit was settled when the parties
executed an agreement that, in part, gave Judd and Gregory Hunt
a contingent use easement to engage in agricultural activities
on a specified area of the same Hunt Family Farm (the “Use
Easement”). The settlement agreement conditioned William C.
Hunt’s grant of the Use Easement on the prior approval of the
holders of the existing Conservation Easement. But the
Conservation Easement grantees declined to approve the Use
Easement because, in their opinion, the proposed Use Easement
would interfere with their existing conservation rights in the
land.
Plaintiffs subsequently filed this action, seeking, in
part, a judgment declaring that the proposed Use Easement does
not conflict with the existing Conservation Easement.
Defendants, the Conservation Easement grantees, moved to dismiss
on grounds that plaintiffs lack standing to bring the action. 2
Plaintiffs object.
2 Defendant’s motion does not distinguish between various plaintiffs, and argues that all plaintiffs lack standing, 2 Background
The relevant facts, drawn from the plaintiffs’ complaint
are as follows. On July 17, 2007, William C. Hunt, and his
wife, Nancy, granted the SLT, USDA and City of Dover a
Conservation Easement Deed over the Hunt Family Farm, located on
Back Road, in Dover. Compl. ¶ 11. The deed recites, in
pertinent part, that:
The Property shall not be subdivided or conveyed in any form in separate parcels. The Grantor further covenants and agrees not to undertake any action that would have the effect of subdividing or conveying any part of the Property.
Id. at ¶ 12.
On May 24, 2010, Judd and Gregory Hunt filed suit against
William C. Hunt (the “Trust Suit”), id. at ¶ 13, in which they
sought the return of the Hunt Family Farm, the family farm
house, and an adjacent lot located at 281 Back Road, as well as
funds paid to William C. Hunt and Nancy Hunt by the SLT, USDA
and the City of Dover in exchange for the Conservation Easement.
The parties mediated their dispute and settled the Trust Suit.
As part of the settlement, William C. Hunt agreed to delineate
because they are not parties to the Conservation Easement deed, apparently seeing the case as one challenging the scope or effect of the Conservation Easement. At oral argument on their motion, however, counsel for Southeast Land Trust seemingly agreed that William C. Hunt, the grantor, has standing, presumably because he granted the Conservation Easement. 3 an area of the Hunt Family Farm with respect to which he would
grant an easement to Judd and Gregory Hunt, permitting them to
“engage in agricultural activities,” or to farm the land. The
necessary lot line adjustments, including the Use Easement
Delineation Line, were approved by the City of Dover Planning
Board, and the City of Dover, and were recorded. Compl. ¶¶ 16,
17.
On November 13, 2012, Judd, Gregory Hunt and William C.
Hunt finalized the settlement agreement in the Trust Suit. The
terms of the settlement agreement obligated William C. Hunt to
grant a contingent Use Easement, appurtenant to the lots located
at 281 Back Road and 295 Back Road, over that portion of the
Hunt Family Farm delineated on the lot line adjustment plans
approved by the City of Dover and recorded. The agreement
provided:
d. Approvals Required. The parties agree and understand that the grant of the Use Easement herein contemplated requires the [prior] approval of the Strafford Rivers Conservancy (“SRC”) 3 and the United States Department of Agriculture (“USDA”) as holders of the Conservation Easement. The Parties agree that they will work together, as necessary, to obtain such approvals in good faith. In the event that the approvals are not granted by the foregoing agencies, the parties will implement an alternative plan as set forth in section 3 hereof.
3 The SRC later merged with the Southeast Land Trust. 4 Id. at ¶ 19. Section 3 of the agreement provides:
Creation of Leasehold. Only in the event that approval of the Use Easement as set forth in Section 2.d above is denied by the SRC and/or the USDA, [William] and Nancy Hunt shall execute a Land Lease.
Def.’s Mot. to Dismiss ¶ 11. 4 The plaintiffs say it was their
intent that the lease would mirror the terms of the proposed Use
Easement. Compl. at ¶ 19.
William C. Hunt executed a Use Easement deed, as required
by the settlement agreement, which provides:
The GRANTEES shall have, and the purpose of this Easement is to allow the GRANTEES, their heirs, successors and assigns, a non-exclusive right to conduct any and all agricultural activities (the “Use”) not otherwise prohibited by the Conservation Easement granted by GRANTORS to The Strafford Rivers Conservancy, Inc., the United States of America, and the City of Dover collectively as Grantees . . .
Compl. at ¶ 22. The Use Easement deed was not recorded. Id.
On January 20 and February 28, 2013, SRC informed the plaintiffs
that it would not approve the proposed Use Easement because, in
its view, the Use Easement would constitute a “subdivision,”
4 In determining whether a plaintiff has sufficiently alleged standing to sue, a court may consider materials outside the pleadings. Conservation Law Found., Inc. v. Plourde Sand & Gravel Co., No. 13-CV-214-SM, 2014 WL 5781457, at *3 (D.N.H. Nov. 6, 2014) (citing Gonzalez v. United States, 284 F.3d 281, 287–88 (1st Cir. 2002). 5 which the Conservation Easement precluded. Defendants,
plaintiffs say, are unreasonably and unlawfully withholding
their approval because their opinion is incorrect — the proposed
Use Easement does not create a “subdivision” as defined by New
Hampshire law or as contemplated by the Conservation Easement.
Defendants having declined to consent to the Use Easement,
Judd, Gregory Hunt and William C. Hunt attempted to negotiate
the terms of a lease, as provided for in Section 3 of the
settlement agreement. However, plaintiffs allege, defendants
somehow endeavored to limit the terms of the proposed lease
between them so that it would not mirror the terms of the
proposed Use Easement. Apparently unable to fulfill their
obligations under the settlement agreement, Judd and Gregory
Hunt filed a declaratory judgment action in state court. 5 The
USDA was added as a defendant on November 25, 2015, see Document
No. 3, p. 17, and it removed the case to this court on January
25, 2016, pursuant to 28 U.S.C. §§ 1441, 1442(a)(1) and 1446.
Plaintiffs ask this court to grant their request for a
declaratory judgment and rule: (1) that the proposed Use
5 During a status conference in the state Trust Suit held on October 26, 2015, counsel for William C. Hunt represented that her client was willing to join the present action as a party- petitioner. See Document No. 3-1, p. 3. He was subsequently joined as a plaintiff to this action by state court order dated November 25, 2015. See Document No. 3, p. 17. 6 Easement does not run afoul of the Conservation Easement, or (2)
that the terms of the alternative land lease must (and lawfully
may) mirror the terms of the proposed Use Easement.
The posture of this case is mildly perplexing. The
plaintiffs’ complaints about “interference” and “unreasonable
withholding of consent” seem widely beside the point.
Defendants have no obvious legal interest in the settlement
agreement resolving the differences between or among the
plaintiffs in the collateral Trust Suit. To the extent
plaintiffs feel ill-used by defendants in that regard, it
appears to be a circumstance entirely of their own making.
Surely they did not have to agree to condition the proposed Use
Easement on defendants’ prior approval. Just as surely
plaintiffs did not have to accept defendants’ views with respect
to the terms of the alternative lease provided for in the Trust
Suit settlement agreement, and they presumably remain free to
amend or modify the settlement agreement.
The plaintiffs accept that under the Trust Suit settlement,
a Use Easement must be granted by William C. Hunt only if
defendants first approve. And they have not. The alternative
lease provision in the Trust Suit settlement seems clear as
well, though it is entirely unclear why the plaintiffs have not
implemented it (no prior approval of the lease by defendants is 7 required). The critical point, however, is that whether William
C. Hunt must, under the Trust Suit settlement agreement, grant
Catherine Judd and Gregory Hunt a Use Easement, or a lease with
particular terms, is a dispute between those parties, and a
dispute over which this court would seem to be without
jurisdiction to resolve. (The dispute does not involve federal
law, the concerned parties are not diverse, and the federal
defendant in this case, the USDA, has no cognizable legal
interest in the proper construction of the terms of the Trust
Suit settlement.) What the parties to the Trust Suit settlement
are or are not entitled to under its terms is up to them, or a
state court, to resolve.
William C. Hunt is not, it seems, claiming that he has
actually given a Use Easement to Catherine Judd and Gregory Hunt
(which he of course could do), or that the settling parties have
waived the contractual obligation between them that requires
defendants’ prior approval before the Use Easement is granted,
or that a genuine dispute arises independently by virtue of the
Conservation Easement holders’ claim of rights in the land
superior to rights presently held by Judd and Gregory Hunt.
Rather he and the other plaintiffs appear to be claiming some
sort of contractual or other legal obligation on the part of the
8 Conservation Easement holders to approve the grant, or at least
to not “unreasonably withhold” their approval.
But the Conservation Easement holders are not parties to
the Trust Suit settlement agreement. They have no apparent
contractual obligations under it, and they are completely free
to hold whatever opinion they choose with respect to whether the
proposed Use Easement might conflict with their interest in the
That William C. Hunt may give a Use Easement or a lease
that may conflict with the Conservation Easement is at this
stage merely speculative. He has not done so; he does not
appear from the complaint to be obligated to do so; and, indeed,
he seems to be insisting that the Conservation Easement Grantees
first approve before he becomes obligated to do so. Plaintiffs
do not plead anything more than that Catherine Judd and Gregory
Hunt should be entitled under the Trust Suit settlement
agreement to a Use Easement from William C. Hunt,
notwithstanding the absence of approval by the Conservation
Easement Grantees. Maybe, or maybe not — that is a dispute
between plaintiffs, subject, if necessary, to resolution in
state court. As the case has been pled, this is a situation in
which the settling parties created a condition precedent (prior
approval) and the condition has not occurred, nor have the 9 parties implemented the alternative lease provision under the
settlement agreement. What is sought is essentially an advisory
opinion, i.e., if Judd and Gregory Hunt were entitled to the Use
Easement, or if they had a lease, would that Easement or Lease
conflict with the Conservation Easement’s terms?
Discussion
Neither party contests the existence of federal subject
matter jurisdiction. However, “[i]t is black-letter law that a
federal court has an obligation to inquire sua sponte into its
own subject matter jurisdiction.” McCulloch v. Velez, 364 F.3d
1, 5 (1st Cir. 2004) (citations omitted); see also Prou v.
United States, 199 F.3d 37, 45 (1st Cir. 1999) (“the question of
subject-matter jurisdiction is always open: courts at every
stage of the proceedings are obligated to consider the issue
even though the parties have failed to raise it”).
The Declaratory Judgment Act, 28 U.S.C. § 2201, provides
that, “[i]n a case of actual controversy within its
jurisdiction,” the court “may declare the rights and other legal
relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.” The Act
“empowers a federal court to grant declaratory relief in a case
of actual controversy. [It] does not itself confer subject
matter jurisdiction, but, rather, makes available an added 10 anodyne for disputes that come within the federal courts'
jurisdiction on some other basis.” Ernst & Young v. Depositors
Econ. Prot. Corp., 45 F.3d 530, 534 (1st Cir. 1995) (citations
omitted).
“[T]he phrase ‘case of actual controversy’ in the Act
refers to the type of ‘Cases’ and ‘Controversies’ that are
justiciable under Article III” of the United States
Constitution. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
127 (2007) (citations omitted). To satisfy Article III’s
requirement, “‘the dispute [must] be definite and concrete,
touching the legal relations of the parties having adverse legal
interests, and [must] be real and substantial and admit of
specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be
upon a hypothetical state of facts.’” Deutsche Bank Nat. Trust
Co. ex rel. FFMLT Trust 2005-FF2 v. Pike, No. 15-CV-304-JD, 2015
WL 5970494, at *3 (D.N.H. Oct. 13, 2015) (quoting MedImmune,
Inc., 549 U.S. at 127) (emphasis supplied).
Here, the facts alleged in the complaint raise concerns
that federal subject matter jurisdiction is lacking.
Specifically, it appears that plaintiffs have not sufficiently
alleged a “substantial controversy, between parties having
adverse legal interests,” MedImmune, Inc., 549 U.S. at 127 11 (emphasis added), because they have not alleged a present right
to a Use Easement. Instead, plaintiffs assert what is at best
an inchoate right to a Use Easement, subject to a condition
precedent: i.e., the Conservation Easement holders’ approval.
While plaintiffs vaguely allege that the Conservation Easement
holders (including the USDA) have some undefined legal
obligation to approve the proposed Use Easement, or at least not
“unreasonably” decline to approve it, they have the power to
waive that condition, as they created it. And if they disagree
about their respective rights under the settlement agreement,
this court would seem to have no jurisdiction to resolve that
dispute. The claim regarding defendants’ obligation to approve,
in addition, is unlikely to prove successful. See, e.g.,
Motorsport Engineering, Inc. v. Maserati SPA, 316 F.3d 26, 29
(1st Cir. 2002) (third-party beneficiary to a contract, who did
not sign the contract, has no contractual obligations to the
actual parties to the contract); Tessier v. Rockefeller, 162
N.H. 324, 331 (2011) (Because defendants were not parties to the
settlement agreement, there were no grounds for contract damages
against them.); cf. Bald v. PCPA, LLC, Case No. 15-cv-219-SM,
2016 WL 1587227, at *4 (D.N.H. April 19, 2016) (contractual
obligations cannot be imposed by the parties to a contract upon
a non-party). But, again, that is actually a dispute between or
among the plaintiffs, subject to state court determination.
12 The standing issue raised by defendants is merely
reflective of and turns on several other apparent difficulties
posed by the complaint. If plaintiffs could plausibly claim a
present interest in the land adverse to defendants’ claimed
interests, they would plainly have standing to sue for a
declaratory judgment to resolve competing claims of right.
Under those circumstances, an actual case or controversy would
exist over which this court could exercise jurisdiction, given
the USDA’s involvement. It is difficult to discern what case or
controversy exists here, however, because the complaint does not
plausibly assert a present interest in the land adverse to
defendants’ interests, and resolving plaintiffs’ claim to an
interest (Use Easement or lease) is a matter that plaintiffs
can, as noted, resolve by agreement, or, failing that, becomes a
dispute over which this court is without jurisdiction.
So, the motion to dismiss on standing grounds is better
denied, albeit without prejudice, at this stage, and instead,
the plaintiffs ought to show cause why this case should not be
dismissed for one or more of the following reasons: failure to
state a cognizable claim; because the court lacks jurisdiction
to determine plaintiffs’ respective (and predicate) rights under
the Trust Suit Settlement Agreement; because the complaint does
not describe a cognizable legal claim against the USDA (which
13 agency’s presence as a party supplies the basis for federal
jurisdiction); and because there appears to be no actual
cognizable and justiciable case or controversy between these
plaintiffs and the named defendants.
Conclusion
Plaintiffs shall show cause on or before October 14, 2016,
why this case should not be dismissed. Defendants may, but are
not required to, file a response on or before October 28, 2016.
The pending motion to dismiss on standing grounds (document
no. 6) is denied without prejudice.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
September 13, 2016
cc: Cyrus F. Rilee, III, Esq. Andrea L. Daly, Esq. Frank E. Kenison, Esq. Anthony I. Blenkinsop, Esq. Michael T. McCormack, Esq.