Lawsuit says NH agency ignored rules in removing ‘Rebel Girl’ historical marker

Suit points to failure to follow rulemaking process, state law in controversial action
Elizabeth Gurley Flynn Marker

Long after her passing, Elizabeth Gurley Flynn — “The Rebel Girl” — continues to vex those who would seek to silence her voice and erase her memory.

Flynn, born in 1890 in Concord, was a leader of the Industrial Workers of the World, founding member of the American Civil Liberties Union and champion of women’s suffrage who joined the Communist Party USA in 1936 and became its chairwoman in 1961. She died in 1964 during a visit to Moscow, where she was accorded a state funeral in Red Square.

Earlier this year, on May Day, a historical marker was unveiled near Flynn’s birthplace, rousing Executive Councilor Joe Kenney to protest “She has no business being recognized, and of any value on historical market in this state.” Gov. Chris Sununu said he would see what could be done to remove the marker. And two weeks later, on May 15, the marker was taken down.

Earlier this week, attorney Andru Volinsky, representing Arnie Alpert and Mary Lee Sargent – who together sponsored the erection of the marker – filed suit charging that state Natural and Cultural Resources Commissioner Sarah Stewart acted “arbitrarily and capriciously” and violated both the department’s own statutes and rules and the free speech rights of the plaintiffs in ordering the removal of the marker and asked the court to order the state to restore the marker to its location.

The historical marker program is administered collaboratively by the Division of Historical Resources, Department of Transportation and an advisory board, the State Historical Resources Council (SHRC). The Department of Natural and Cultural Resources (DNCR) promulgates the rules for the program, which must be ratified by the SHRC, in accordance with the state Administrative Procedures Act.

The program provides that, on petition by 20 citizens, the NHDOT commissioner “shall” erect a historical marker. Alpert and Sargent collected 40 signatures. They also submitted abundant evidence and documentation in support of Flynn’s national historic significance. Their petition was approved without any apparent dissent.

On May 12, nine days after the Executive Council met and three days before the marker was removed, the DNCR amended the procedures, policies and guidelines of the historical marker program. However, the plaintiffs allege, the DNCR failed to follow the rulemaking process prescribed by the either by Administrative Procedures Act or the department itself.

The policy for revising, removing or retiring markers was revised to include the following: “Markers proposed for revisions beyond the correction of errors shall identify elements that include, but are not limited to, existing inaccuracies, lack of historical context, or references that could be seen as inappropriate, and provide proposed direction to changes in content.”

The law requires the DNCR to consult with the SHRC about any changes to its rules as well as for the SHRC to ratify any changes to the rules. The plaintiffs contend that no consultation took place nor did the SHRC ratify the amended rules from which Commissioner Stewart drew the authority to order the removal of the Flynn marker.

Moreover, the amended rules prescribe, “If the DHR staff recommends the retirement of an Historical Highway Marker that decision will be discussed and recorded at an SHRC meeting in the official minutes of the meeting with appropriate documentation of the reason for retirement.”

The plaintiffs claim that in removing the Flynn marker the DHR did not discuss the issue with the SHRC or document the reason for its decision.

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