I. If, upon appeal of the landowner, the superior court determines that the decision appealed from so exceeds the bounds of the police power as to constitute the equivalent of taking without compensation and that the land as so regulated meets the public purpose standards of this chapter, and if such ruling is affirmed on appeal or becomes the law of the trial by failure of the state to appeal, the superior court shall then proceed to the assessment of the landowner’s damages. Unless the department, at this stage, consents to the reversal or modification of its decision by the superior court, that court shall first determine all questions of land title, after notice to all persons interested in the land, including notice by publication to any unknown owners, and then shall assess the damages of the landowner or landowners proceeding as provided in N.H. Rev. Stat. § 482:35-38, inclusive, and N.H. Rev. Stat. § 498-A:27, and may enter judgment against the state accordingly. The interest acquired by the state by virtue of such proceedings shall be a perpetual negative easement that the privately-owned land or interest in the land described in the proceedings shall not thereafter be excavated, removed, filled, dredged, canalized or ditched, subject to any such reasonable reservations to the landowner as the department may have stipulated to prior to the assessment of damages. The state may, in the alternative, purchase the land or interest in the land in fee simple or other acceptable title, or subject to acceptable reservations and exceptions, by agreement with the landowner. To satisfy any judgment or purchase agreement under this section, the governor and council, in their discretion, may draw their warrant on the marine fisheries fund, the fish and game fund, any other available appropriation for such purpose, or on any money in the treasury not otherwise appropriated, or any combination of such funds, as they may determine to be just and reasonable, or, in the alternative, they may certify a judgment to the next session of the general court for the passage of an appropriation of money sufficient to satisfy the same. The department may, in the name of the state, accept gifts of land or interests in land for the purposes of this chapter.
II. The use of the marine fisheries fund or the fish and game fund under paragraph I shall require a finding that the expenditure will be of substantial benefit to marine fisheries or to fish and wildlife, as the case may be, and the governor and council shall request the prior opinion of the fish and game commission in each such case.