ANR v. Persons

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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ANR v. Persons & Trust A of Timothy Persons, 97-6-10 Vtec
Title: Motion to Stay, filed after appeal to Vermont Supreme Court (Filing No. 6)
Filed: October 22, 2012
Filed By: Respondent Timothy Persons and Respondent Trust A of Timothy Persons
Response in Opposition filed on 11/01/12 on behalf of the Agency of Natural Resources
___ Granted X Denied ___ Other
On August 2, 2012, this Court issued its Merits Decision in the above-referenced
environmental enforcement action which generally upheld the administrative order issued on
May 24, 2010 (“Administrative Order”) by the Vermont Agency of Natural Resources (“ANR”)
against Respondents Timothy Persons and Trust A of Timothy Persons (hereinafter collectively
referred to as “Respondents”). In particular, the Court ordered Respondents to pay a penalty of
$14,222.00 and affirmed the injunctive directives contained in the Administrative Order.
Respondents thereafter appealed this Court’s Merits Decision to the Vermont Supreme
Court. By virtue of Respondents’ appeal, Respondents’ obligation to pay the assessed penalties
was stayed, but not the “operation” of the Administrative Order. 10 V.S.A. § 8013(d);
V.R.E.C.P. 4(d)(6)(B). We interpret these statutory and Rule provisions to mean that work
directives contained in the Administrative Order were not subject to an automatic stay.
Respondents first sought a stay from the Vermont Supreme Court of the work directives
contained in the Administrative Order. The Supreme Court denied the requested stay, but
allowed Respondents to seek a stay from this Court, which could then be reviewable by the
Supreme Court in the course of considering Respondents’ appeal. ANR v. Persons, et. al., No.
2012-274, slip op. at 1–2 (Vt. Oct. 12, 2012)(unpub. mem.)
Respondents then filed a motion for stay with this Court, to which ANR objects. For the
reasons below, we decline to issue the requested stay.
Respondents present two arguments in support of the pending motion for stay. First,
Respondents assert that by affirming the work directives in the Administrative Order, this
Court acted contrary to a subsequent ANR directive that was contained in ANR’s post-trial
memorandum. Second, Respondents assert that a stay is warranted while their Supreme Court
appeal is pending because “ANR did not provide proof of or demonstrate any actual impact of
the alleged harm to the environment, even though at the time of trial the waterline and spring
tiles had been in place for almost five years.” Respondents’ Motion for Stay at 3 (filed Oct. 22,
2012).
This environmental enforcement action centers on Respondents’ installation of water
lines and three spring well structures (known as “spring tiles”) within a secondary wetland
ANR v. Persons, et. al., No. 97-6-10 Vtec (E.O. on Mot. For Stay) (11-16-2012) Pg. 2 of 3.
governed by the Vermont Wetlands Protection and Water Resources Management laws (10
V.S.A., Chapter 37) and the Vermont Wetland Rules. No construction work or other
development activities are allowed within protected wetlands without first receiving a
conditional use determination (“CUD”) from ANR that authorizes the anticipated work.
Respondents and their agents installed the water lines and spring tiles within protected wet
areas on their properties, cleared trees and brush in a large swath, did other excavation work,
including bringing in gravel and other fill, and installed electrical lines and fixtures, within a
protected wetland on their property, all without seeking guidance or obtaining a CUD from
ANR officials. Mr. Persons’ activities were particularly egregious because he had previously
admitted to violating the Vermont Wetlands laws, paid a fine for doing so, and completed a
wetlands education course.
Respondents are correct that ANR suggested in its post-trial memorandum that the
removal of the last ten feet of waterlines, as they enter the unpermitted spring tiles, may
actually cause further disturbances in the protected wetland areas. But this suggestion in
ANR’s post-trial filing did not supersede the corrective work directives in the Administrative
Order. In fact, those directives were affirmed by this Court in its Merits Decision, which the
Court is authorized to do when considering a challenge to an administrative order. 10 V.S.A.
§ 8012(b)(2)( establishing that this Court has the authority to “affirm, or vacate and remand to
the secretary an [administrative] order”). The Court considered the parties’ post-trial filings in
making its Merits Decision determinations, including ANR’s suggestion that the removal of ten
feet of the water lines nearest to the spring tiles may cause further disturbances to the protected
wetlands. In light of all the evidence presented, the Court concluded that an affirmation of the
Administrative Order was warranted. We do not understand how ANR’s legal arguments,
already considered and ruled upon by the Court, are a factor in determining whether we should
now issue the stay that Respondents request.
Respondents’ second argument is equally unavailing. First, we are less than willing,
given the evidence heard at trial, to rely upon Respondents’ current assessment that their and
their agents’ activities did not actually cause environmental harm. Nor do we understand that
the applicable statutory provisions obligate ANR to show that actual environmental harm has
occurred when it seeks to enforce an environmental protection law. ANR’s principal burdens at
trial were to show that the areas Respondents disturbed were protected by the Wetlands
Protection laws and Rules and that Respondents had no authority to cause these wetland
disturbances. ANR convincingly persuaded the Court of these facts and Respondents have not
made any showing now that our trial determinations are likely to be disturbed on appeal.
Respondents performed significant excavation and construction work within a protected
wetland area without first securing a required CUD. They conducted this work to improve the
water supply resources for their properties, presumably to increase the value of their
undeveloped properties.
Respondents have not provided any factual or legal foundation for this Court to issue
the stay they request. We must therefore DENY Respondents’ request. In light of this ruling,
jurisdiction over this matter is now returned to the Vermont Supreme Court.
_________________________________________ November 16, 2012
Thomas S. Durkin, Judge Date
ANR v. Persons, et. al., No. 97-6-10 Vtec (E.O. on Mot. For Stay) (11-16-2012) Pg. 3 of 3.
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Date copies sent: ____________ Clerk's Initials: _______
Copies sent to:
Attorney John Zaikowski, co-counsel for Petitioner Agency of Natural Resources
Attorney Kyle H. Landis-Marinello, co-counsel for Petitioner Agency of Natural Resources
Attorney Paul S. Gillies for Respondents Timothy Persons and Trust A of Timothy Persons
Clerk, Vermont Supreme Court.