Agri-Mark Indirect Discharge Permit Amendment

State of Vermont
Superior Court - Environmental Division
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E N T R Y R E G A R D I N G M O T I O N
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In re Agri-Mark Indirect Discharge Permit Amendment, Docket No. 63-4-10 Vtec
Project: Amendment to permit authorizing spray and land applications of
whey, washwater and polished permeate from dairy manufacturing facilities.
Applicant: Agri-Mark, Inc., d/b/a as Cabot Creamery
(Appeal from ANR Indirect Discharge-Surface Water Permit Amendment
Title: Motion to Dismiss for Lack of Party Status and Standing (Filing No. 1)
Filed: April 30, 2010
Filed By: Ross A. Feldmann, Attorney for Appellee Agri-Mark, Inc.
Response in Opposition filed on 05/10/10 by Appellant Jessica Miller
Reply to Response filed on 05/14/10 by Appellee Agri-Mark
Sur-Reply in opposition filed on June 9, 2010 by Appellant Jessica Miller
_X_ Granted ___ Denied ___ Other
___ Scheduled for hearing on: _________ at ________; Time Allotted ________
Appellant Jessica Miller (“Appellant”) appeals from the March 31, 2010
determination by the Vermont Agency of Natural Resources, Department of
Environmental Conservation (“DEC”) to issue Amended Indirect Discharge Permit
No. ID-9-0043-5, which authorized specific indirect discharges of polished
permeate, whey, and washwater from a dairy manufacturing facility in Cabot,
Vermont. These by-products of the Cabot manufacturing activities are applied by
spray to disposal fields and directly to agricultural fields in approximately
thirty-one towns throughout Central Vermont. The dairy by-product then leaches
through the soils in these various fields and ultimately results in indirect
discharges into various receiving streams and waters of the State.
Agri-Mark, Inc., d/b/a Cabot Creamery (“Permittee”) responded to
Appellant’s filings with a motion to dismiss, alleging that because Appellant
does not satisfy the statutory requirements for party status and standing to
bring an appeal of Amended Permit No. ID-9-0043-5, her appeal must be
dismissed.1 Appellant has made several filings in response to the Permittee’s
motion and objects to the dismissal of her appeal. The motion is therefore now
ripe for our review.
Courts are constitutionally restricted to adjudicating disputes where
there exists a “live controversy” between adverse litigants with standing to
assert their respective claims. In re Keystone Development Corp., 2009 VT 13,
1
On May 5, 2010, Agri-Mark also filed an “Amended Motion to Dismiss for Lack of Party Status and Standing.” This
filing appears to supplement Agri-Mark’s original motion, filed on April 30, 2010, and to be a response to Appellant
Miller’s “Second Correction to [her] Notice of Appeal,” filed on May 3, 2010. Ms. Miller also filed a “Third Correction
to Notice of Appeal” on May 4, 2010. We have considered all filings by both parties in rendering this Entry Order on
Agri-Mark’s motion to dismiss.
In re Agri-Mark Indirect Discharge Permit Amendment, No. 63-4-10 Vtec (EO on motion to dismiss (07-20-10) Page 2.
¶ 7 (citing Houston v. Town of Waitsfield, 2007 VT 135, ¶ 5, 183 Vt. 543 (mem.)
(noting that “the Vermont Constitution, . . . like its federal counterpart,
limits the authority of the courts to the determination of actual, live
controversies between adverse litigants" (citation omitted))). When courts
decide cases that are outside these constitutional limits, they act beyond their
jurisdictional authority. Id.The statutory framework that limits a person’s right to appeal a land use
determination finds its foundation, in part, in these constitutional
limitations. Our Legislature further determined that a person may only appeal a
land use determination, such as the amended indirect discharge permit issued by
DEC in this case, when they may be deemed to be a “person aggrieved.”2 The
Legislature has defined a “person aggrieved” as “a person who alleges an injury
to a particularized interest protected by the provisions of law [applicable to
state land use determinations], attributable to an act or decision by [DEC or
others] that can be addressed by the environmental court.” 10 V.S.A. § 8502(7).
We therefore review Appellant’s claims to be such a “person aggrieved,” as that
term is used in this statutory context. For the reasons expressed below, we
conclude that Appellant has not put forth sufficient evidence to support a
finding that she is a “person aggrieved,” or otherwise shown another factual
basis to support a finding of party status or standing. For these reasons, we
conclude that her appeal must be DISMISSED.
First, we note that because the Permittee has chosen to file a motion to
dismiss Appellant as a party, it has set for itself a high standard of factual
review. We are directed when considering a motion to dismiss a party or their
pleading to regard as true “all well-pleaded factual allegations . . . and all
reasonable inferences to be drawn from them, and take[] as false all
contravening assertions in the movant’s pleadings.” Knight v. Rower, 170 Vt.
96, 98 (1999) (citing Thayer v. Herdt, 155 Vt. 448, 456 (1990)). Motions to
dismiss are “not favored and rarely granted.” Gilman v. Maine Mutual Fire Ins.
Co., 2003 VT 55, ¶ 14, 175 Vt. 554 (citing Ass'n of Haystack Prop. Owners v.
Sprague, 145 Vt. 443, 446-47 (1985) and 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1357, at 598 (1969)).
Even in this favorable light, we have been unable to discern facts that
could conceivably support a legal conclusion that Appellant has standing in
these permit proceedings. Amended Permit No. ID-9-0043-5 appears to provide
authority for extensive spraying and land application of dairy manufacturing by-
product. However, Appellant appears to allege that her home is no closer than
three and a half miles from the project sites. Appellant complains of damage
she previously incurred when her vehicle was sprayed by Permittee’s trucks, but
does not provide any connection to the damage she once may have suffered, or a
fear of that occurring again, and the activities authorized by the permit now
under our review. Similarly, Appellant appears to express sincere concerns
regarding the impact from Permittee’s truck traffic. However, the challenged
permit does not authorize that truck traffic. In fact, a challenge to
Permittee’s underlying Act 250 permit would have been a more appropriate
proceeding in which to raise traffic impact concerns; Appellant acknowledges
that she was a party to those Act 250 proceedings, suffered an adverse
determination at the hands of the District Commission, and chose not to appeal.
Those District Commission determinations have therefore become final.
In summary, Appellant appears to raise sincere and perhaps legitimate
concerns about the general operation of the Cabot Creamery, but has failed to
provide us with a factual basis for addressing those concerns in this proceeding
2
10 V.S.A. § 8504(a)
In re Agri-Mark Indirect Discharge Permit Amendment, No. 63-4-10 Vtec (EO on motion to dismiss (07-20-10) Page 3.
to determine whether Cabot’s application for an amended indirect discharge
permit should be granted. Without a factual foundation to support her standing
to raise those concerns, we are without the jurisdictional authority to address
her concerns in this proceeding. For these reasons, we must DISMISS her appeal.
___________________________________________ ____July 20, 2010_____
Thomas S. Durkin, Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Appellant Jessica Miller
Attorney Ross A. Feldmann for Appellee Agri-Mark, Inc.
Attorneys Catherine Gjessing and Cielo Marie Mendoza for the Vermont Agency
of Natural Resources