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The battle over Million Air’s plans to build an air facility close to wetlands at Pease International Tradeport is heading to the New Hampshire Supreme Court.

Rival aviation service company Port City Air is appealing a New Hampshire Department of Environmental Services ruling that it cannot intervene in the case since Port City does not own land at the Tradeport.

Jake Marvelley, Port City’s attorney, said DES’s order means anyone with a lease or rental agreement is now blocked from ever challenging that state.

“That’s the logical extent of it. That’s what they’re saying. If you’re not a landowner, you can’t appeal,” Marvelley told NH Journal.

Texas-based Million Air wants to build a new fixed-based operator facility at Pease to service private aircraft over objections from residents and nearby communities concerned about the potential negative environmental impacts.

Port City has joined the effort to block the development, and it was part of the appeal to the DES Water Council concerning state approval for Million Air’s wetlands permit. However, DES threw out Port City’s appeal on the argument the company does not qualify as an abutter under the law. 

Now Port City is taking its case to the New Hampshire Supreme Court, arguing DES’s order is unconstitutional. 

“The Order relies on a reading of applicable statutes that leads to an unconstitutional result: depriving Port City Air of any right to be heard, and therefore violating its right to due process under the United States and New Hampshire Constitutions,” Marvelley wrote in the appeal filed with the New Hampshire Supreme Court on Friday.

The Wetlands Council order found that Port City cannot be considered a “person aggrieved,” the legal term of an entity capable of the necessary standing to bring legal action, because the company does not own land at Pease. Port City leases its facility from the Pease Development Authority. Zachary Towle, the DES hearing officer who ruled against Port City, states the company does not qualify under the law to fight Million Air.

“Port City does not possess a fee ownership interest in the relevant land. Port City does not possess an easement on PDA owned land, buildings, other facilities, or improvements. Port City possesses a leasehold interest regarding property owned by the PDA,” Towle wrote. “As Port City does not qualify as a landowner, it cannot qualify as an abutting landowner and therefore cannot be a ‘person aggrieved’ with standing pursuant to RSA § 482-A:10.”

Marvelley argued in his appeal that if Towle’s ruling is allowed to stand, no tenant anywhere in the state could appeal any DES order. 

“That would mean a wide-ranging infringement of constitutional rights of any party that happened to not be a landowner in fee simple. Specifically, the Order’s interpretation of applicable statutes prevents any tenant from ever successfully seeking administrative review,” Marvelley wrote.

If the DES order is allowed to stand, it will impact Port City and all the tenants at Pease, Marvelley said. The PDA is engaged in numerous long-term lease agreements with multiple tenants, some of whom have invested millions in their businesses. Under Towle’s ruling, these businesses have no right to appeal any DES orders. 

“Somewhere like Pease, everyone’s a tenant,” Marvelley said.

Port City has said its opposition to Million Air is based on environmental concerns. Pease is already the site of a major PFAS contamination that has impacted drinking water in the Seacoast region. 

Danna Truslow, a hydrogeologist Port City hired to look at the site, found levels of PFAS in the site Million Air wants to use are already 10 times higher than the levels considered safe. Million Air will be building near the wetlands that feed the aquifer, which supplies water for several communities.

Million Air has maintained Port City’s opposition is more about stopping competition than stopping contamination. Million For has stated its project will be environmentally safe and secure. 

When a citizen filed a “no trespassing ” order against Claremont City Councilor James Contois, the government official did not take it lying down. Instead, he went to his fellow city official, Claremont Police Chief Brent Wilmot, and tried to get it removed.

Contois did not get his way, and now he is facing calls for his removal for attempting to get special treatment from the city.

“I don’t give up my rights as a citizen,” Contois said. “If I had overstepped my boundaries, you bet your life that [the] chief would have called the city manager or the mayor.”

Contois was served with the order last week to stay off the Route 12 property being developed into a Jeep dealership by Christian Gomes. Gomes said he called the police after Contois refused to leave his property.

“He needs to get out of government because he can’t be impartial,” Gomes said. “He’s trying to be an activist while he’s a city councilor. He can’t do both.”

Gomes owns both the Jeep and Ford dealerships in the city. He recently won approval from the New Hampshire Department of Environmental Services to drain and fill a wetlands meadow to move the Jeep dealership to be adjacent to the Ford dealership. Gomes agreed to pay a $146,000 fee to the state for the wetlands and said his plans have been approved by both state and city authorities.

“I’ve done everything that DES has asked,” Gomes said. “We’re breaking ground next week.”

Contois, who also sits on the city’s Conservation Commission, is a vocal opponent of the development. He filed an appeal of the DES approval for the construction. Last week, Contois went to the Route 12 wetlands to get photos for his appeal when he says he was confronted by Gomes.

“(He) was verbally harassing me to get off property and he called police,” Contois said.

Gomes’ version is different, saying the city councilor was on his dealership property being a nuisance before he contacted police.

“(Contois) refused to leave after being asked three times,” Gomes said.

Police told Contois to leave, even though Contois claims he was legally allowed to be at the property based on his reading of city tax maps. Gomes then obtained a no-trespassing order through the department to keep Contois from coming back.

On Monday, Contois called Claremont Police Chief Brent Wilmot to see if the chief could have the order rescinded.

“He told me he was looking to have the order lifted, and I explained that’s not something we did,” Wilmot said.

Police in New Hampshire do not have the legal authority to lift no trespassing orders, Wilmot explained. That is a decision only the property owner can make. Wilmot told the councilor that police essentially act as letter carriers in cases of such orders. Wilmot told NH Journal he tried to educate the councilor about how no trespassing orders work and suggested Contois find another location from which to take photos.

Wilmot chalked up the call from Contois to a misunderstanding about the procedure and did not view it as an attempt to influence law enforcement.

“I did not feel he was pressuring me to have it lifted,” Wilmot said. “I simply told him I was not going to do that.”

Wilmot did pass along Contois’ concerns, and another officer called Gomes to see if he wanted to have the order lifted, which Gomes declined. Gomes, himself a former New York police officer, said if Contois was not trying to pressure police, his call to Wilmot demonstrated a level of incompetence that is itself disqualifying.

“The man is mentally incompetent,” Gomes said.

Gomes cited Contois’ testimony during the July DES public hearing when the councilor spoke in opposition to the development. During his testimony, Contois said he went to the property and listened to the wildlife present.

“I went to the wet meadow last weekend just to observe,” Contois said according to the recorded testimony. “I heard dozens of redwing blackbirds screaming at me, ‘Get out of here! We have nests here. This is our home.’”

Gomes is threatening to tell businesses to stay out of Claremont unless Contois is removed from the board. He said Contois claims to support businesses coming to the city, and yet spends his time trying to hamper the businesses already operating.

“You can’t be for business and then fight a business,” Gomes said.

Mayor Dale Girard said the council will be investigating the matter, and that the city’s attorney is being consulted. Contois is allowed to stand up for his beliefs and be an activist if he does not represent his actions as those of the council, Girard said.

“It’s a case where Mr. Contois was a private citizen and he wasn’t there representing the council,” Girard said. “I can’t speak to what he does on his personal time.”

Girard agreed that council members should not seek special treatment from police, but he is not sure if that is the case here. Girard said he is still gathering information on what happened.

Gomes said that when he was a police officer, if a local government official asked him to fix a ticket or something similar, that would have been out of line.

“That’s an abuse of power,” Gomes said.