By William Opalka

The New Hampshire Supreme Court ruled on Tuesday that state transportation officials — not landowners — can determine if the Northern Pass transmission line can be buried in a highway right of way.

The Society for the Preservation of New Hampshire Forests sued in late 2015, maintaining that Eversource Energy needed its permission to bury the line through its property, even though previous owners granted a right of way to the state Department of Transportation for a roadway that is now the four-lane Route 3.

The court ruled that jurisdiction rests with the department. It also said there is no material difference in the permission granted in 1931 between a surface highway and a developer’s attempt to build an underground transmission line today.

The unanimous ruling agreed with a lower court that ruled against the group. (See Court Dismisses Complaint vs. Northern Pass.)

“We conclude that use of the Route 3 right of way for the installation of an underground high voltage direct current electrical transmission line, with associated facilities, falls squarely within the scope of the public highway easement as a matter of law, and that such use is within the exclusive jurisdiction of the DOT to regulate,” the court wrote.

Jack Savage, a spokesman for the Forest Society, was surprised by the ruling when contacted by RTO Insider on Tuesday, as he was awaiting a schedule for oral arguments. Atop the ruling was a notation from the court that “oral argument is unnecessary.”

The organization owns a parcel of land along Route 3 in northern New Hampshire known as the Washburn Family Forest, and it granted easements to the DOT.

“As we’ve previously noted, the Forest Society has frequently demanded Northern Pass be buried, yet in this case, had filed this lawsuit to prevent its burial,” Northern Pass said in a blog post.

The Forest Society said the ruling merely delays resolution of eminent domain questions that will eventually return to the Supreme Court.

“The Supreme Court’s decision regarding the Forest Society’s lawsuit against Northern Pass is unfortunate in that it puts off until later a private property rights issue of extraordinary importance to New Hampshire landowners. In short, the court punted,” it said in a statement.

Northern Pass is a proposed 192-mile transmission line that would import 1,090 MW of Canadian hydropower from Quebec to be fed into the New England power grid. Sixty miles of the route is proposed to be underground.

Eversource says additional burial would make the project uneconomic. Opponents want the entire route underground.

The project is before the state’s Site Evaluation Committee, with its ruling due in September.