Lake Winnipesaukee Resort, LLC (LWR) sought to construct a golf course in New Durham, New Hampshire. It retained Peerless Golf, Inc. (Peerless) in May 2001 as general contractor. Early in the construction of the course, the New Hampshire Department of Environmental Services (DES) learned of certain environmental problems, investigated and ultimately issued an order in August 2001 requiring LWR to mitigate environmental damage and to cease disturbing soil. DES subsequently lifted the order and issued permits allowing construction to be completed. The state then petitioned the superior court in August 2006 for civil monetary penalties for alleged violations of RSA chapter 482-A (2001 & Supp.2008) (entitled “Fill and Dredge in Wetlands”) and RSA chapter 485-A (2001 & Supp.2008) (entitled “Water Pollution and Waste Disposal”). The underlying conduct complained of occurred no later than 2002.

Peerless raised a statute of limitations defense based on the general three-year statute of limitations for personal actions at RSA 508:4 (1997) and moved to dismiss. In ruling upon the motion to dismiss, the trial court first recognized nullum tempus, the notion that the state is immune from RSA 508:4 as an operative doctrine in New Hampshire. It noted that neither RSA chapter 482-A nor RSA chapter 485-A specifically limits the time for bringing actions to recover civil penalties. It further reasoned that the general three-year statute of limitations upon “personal actions,” RSA 508:4, did not apply because the state’s action against Peerless was penal. Accordingly, it ruled that “the presumption that time does not run against the State applies.”

On interlocutory appeal, the Supreme Court of New Hampshire affirmed that nullum tempus continues to apply in New Hampshire despite limitation of the doctrine in other states, such as South Carolina, Colorado and New Jersey. Following a review of RSA 508:4, the court did not conclusively resolve whether the statute was relevant to the state’s claims, but considered this irrelevant as RSA 508:4 does not expressly waive nullum tempus. The Supreme Court stated, “We follow the doctrine that unless a statute of limitations expressly waives nullum tempus by making a limitations period specifically applicable to the State, the sovereign remains immune from general statutes of limitations.” Consequently, the state was free to pursue its claims for civil monetary penalties.

State v. Lake Winnipesaukee Resort, LLC, No. 2008-724, 2009 WL 1676885 (N.H. June 17, 2009).