In re Hinsdale Farm

In re Hinsdale Farm (2002-566); 177 Vt. 115; 858 A.2d 249

2004 VT 72

[Filed 13-Aug-2003]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 72

                                No. 2002-566


  In re Hinsdale Farm	                         Supreme Court

                                                 On Appeal from
       	                                         Water Resources Board

                                                 November Term, 2003


  David J. Blythe, Chair

  Ronald A. Shems and John B. Kassel of Shems Dunkiel & Kassel PLLC,
    Burlington, for Appellants.

  Liam L. Murphy and Abby C. Moskovitz of Langrock, Sperry & Wool, LLP,
    Burlington, for Appellee.


  PRESENT:  Amestoy, C.J., Johnson, Skoglund and Reiber, JJ., 
            and Gibson, J. (Ret.),  Specially Assigned

       ¶  1.  SKOGLUND, J.   Appellants Citizens for Safe Farming, Inc.,
  William J. and Bonnie F. Bly, Bethany and Shawn Bedard, and Steven and Jane
  Ann Kantor challenge a Water Resources Board (WRB) order dismissing their
  appeal.  They appealed a Winooski Natural Resources Conservation District
  decision issuing an agricultural dam permit (Permit) to Hinsdale Farm to
  construct a dairy waste storage facility.  The WRB dismissed the appeal for
  lack of jurisdiction.  We affirm. 
   
       ¶  2.  On August 19, 2002, the District issued Hinsdale an
  agricultural dam permit pursuant to its authority under the Vermont Dams
  Act, 10 V.S.A. § 1083a.  Citing 10 V.S.A. § 1099, appellants appealed the
  district's decision to the WRB.  In their Notice of Appeal, appellants
  asserted that the Permit was issued in error because it did not serve the
  public good, adversely affected scenic and recreational values, adversely
  affected water uses, was hazardous to public health, would contaminate
  ground and surface waters, was inadequately designed, failed to provide
  public benefits, would diminish property values, and would be a public
  safety risk.  Appellants also filed a Notice of Appeal in Chittenden
  Superior Court pursuant to V.R.C.P. 75.  In their superior court complaint,
  appellants insisted that the WRB had jurisdiction over their appeal, and
  that the second appeal was only a protective measure.

       ¶  3.  WRB Chair David J. Blythe determined at the prehearing
  conference that whether the WRB had jurisdiction to hear the appeal was a
  threshold issue that needed to be briefed, argued, and decided before the
  WRB could turn to the merits.  The WRB received briefing from the parties
  and convened on November 19, 2002 to hear oral argument on whether the WRB
  had jurisdiction over agricultural dam permit appeals.  In December 2002,
  the WRB issued a decision dismissing the appeal for lack of jurisdiction.
   
       ¶  4.  The WRB relied on the plain language of the Vermont's Dams Act,
  focusing particularly on the fact that 10 V.S.A. § 1099, which governs
  appeals from dam permits, does not expressly provide the WRB with
  jurisdiction over appeals from district agricultural dam permit decisions. 
  Section 1099's silence as to how district decisions are to be appealed,
  when combined with the well-settled Vermont law that the jurisdiction of
  administrative bodies is limited to that which has been expressly conferred
  by statute, persuaded the WRB that it lacked jurisdiction to hear this
  appeal.  

       ¶  5.  We review the WRB's dismissal for lack of subject matter
  jurisdiction de novo.  Jordan v. State, 166 Vt. 509, 511, 702 A.2d 58, 60
  (1997).  The issue presented in this appeal is whether the Dams Act gives
  the WRB jurisdiction over appeals of agricultural dam permits issued by
  natural resource conservation districts.  This is a question of statutory
  interpretation.  When interpreting a statute, our principal objective is to
  implement legislative intent. State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996).  Where legislative intent can be ascertained on its face,
  the statute must be enforced according to its terms without resort to
  statutory construction.  Derosia v. Book Press, Inc., 148 Vt. 217, 222, 531 A.2d 905, 908 (1987).  Where there is ambiguity or uncertainty about
  legislative intent, we must consider the entire statute, including its
  subject matter, effects and consequences, as well as the reason for and
  spirit of the law.  See Paquette v. Paquette, 146 Vt. 83, 86, 499 A.2d 23,
  26 (1985).  "[T]he legislative history and circumstances surrounding [a
  statute's] enactment, and the legislative policy it was designed to
  implement," can also be helpful in discerning legislative intent.  Perry v.
  Med. Practice Bd., 169 Vt. 399, 406, 737 A.2d 900, 905 (1999).
   
       ¶  6.  Under the Vermont Dams Act, 10 V.S.A., Chapter 43,
  responsibility for issuing nearly all dam permits is divided between two
  entities.  Permits for dams used to generate hydroelectric power are issued
  by the Public Service Board (PSB).  10 V.S.A. § 1081.  With one exception,
  permits for all other types of dams are issued by the Agency of Natural
  Resources through the Department of Environmental Conservation (DEC).  Id. 
  That one exception is permits for agricultural dams, which are issued by
  natural resource conservation districts pursuant to 10 V.S.A. § 1083a.  

       ¶  7.  Section 1085 of the Dams Act makes clear that different
  procedures apply to the review and approval of dam permit applications
  depending on which agency has jurisdiction.  Before granting permits, DEC
  must hold a public information meeting "to hear comments on whether the
  proposed project serves the public good and provides adequately for the
  public safety," id. § 1085(1), while the PSB must hold a hearing on each
  application to make the same determination.  Id. § 1085(2).  In contrast,
  when the owners of an agricultural enterprise seek to construct or alter
  any permitted dam, pond, or impoundment on their property, they must apply
  for an agricultural dam permit from the local natural resource conservation
  district.  The district then "review[s] and approve[s] the applications in
  the same manner as would the department."  Id. § 1083a(a).  When there is a
  change in use or ownership affecting use, jurisdiction over agricultural
  dam permits reverts to DEC.  Id. § 1083a(c). 

       ¶  8.  Appeals of dam permitting decisions are governed by 10 V.S.A. §
  1099.  Parties aggrieved by a PSB decision can appeal directly to the
  Vermont Supreme Court.  Id. § 1099(b).  Permitting decisions of DEC are
  appealable to the WRB.  Id. § 1099(a).  The Dams Act generally and § 1099
  specifically are silent on the question of where appeals lie from decisions
  of the natural resource conservation districts.

       ¶  9.  After reviewing the entire statutory scheme and the relevant
  legislative history we find that, as currently written, the statutes do not
  provide the WRB with jurisdiction to hear appeals from agricultural dam
  permit decisions by the districts.  We find support for our ruling in prior
  case law, relevant statutes and rules, and legislative history.  
   
       ¶  10.  First, the WRB was correct when it stated that the
  jurisdiction of administrative bodies is limited.  We have repeatedly
  affirmed that "[p]ublic administrative bodies have only such adjudicatory
  jurisdiction as is conferred on them by statute, with nothing presumed in
  favor of their jurisdiction."  Gloss v. Delaware & Hudson R.R., 135 Vt.
  419, 422, 378 A.2d 507, 509 (1977).  "The Legislature has made it clear
  that administrative departments may exercise only those powers expressly
  conferred, and that authority cannot arise through implication."  Subud of
  Woodstock, Inc. v. Town of Barnard, 169 Vt. 582, 583, 732 A.2d 749, 750
  (1999) (mem.) (citing to 3 V.S.A. § 203). 

       ¶  11.   The only appellate power the Legislature expressly conferred
  on the WRB was to hear appeals from DEC permitting decisions.  See 10
  V.S.A. § 1099.  Appellants argue that, because § 1083a(a) says that
  districts shall review permit applications in the same manner as DEC, by
  implication the Legislature also intended to have appeals from district
  decisions reviewed in the same manner as appeals from DEC decisions.  To
  come to this conclusion would require us to impermissibly presume
  jurisdiction without any express statutory authority, and in the process
  violate long-held precedent of this Court.  In the absence of an express
  grant of adjudicatory jurisdiction, we will not invent it.  See State v.
  Brooks, 162 Vt. 26, 29, 643 A.2d 226, 228 (1993).
   
       ¶  12.  Second, our ruling is further supported by relevant
  legislative history.  The regulation of dam permits originated in 1929, at
  which point the Public Service Commission had jurisdiction over all dam
  permit applications.  See 1929, No. 80, §§ 1-10.  At that time, appeals
  from its decisions were taken in the same manner as any other order of the
  Public Service Commission.  See id. § 6.  In 1949, the Legislature
  transferred jurisdiction over all dam permits to the Water Conservation
  Board, with the exception of those involving hydroelectricity generation,
  which stayed within the purview of the Public Service Commission.  See
  1949, No. 223, § 1.  Appeals from dam permit decisions were then taken in
  the same manner as any other order of the Water Conservation Board.  See
  id.  In 1960, the Public Service Commission was renamed the PSB, and in
  1961, the Water Conservation Board was renamed the Water Resources Board. 
  See 1959, No. 329 (Adj. Sess.), § 39; 1961, No. 100, § 2.

       ¶  13.  In 1976, the Legislature enacted 10 V.S.A. § 1083a, which
  divested the WRB of jurisdiction over agricultural dam permits.  See 1975,
  No. 179 (Adj. Sess.), § 5.  Regulation of agricultural dam permits was
  transferred to the natural resource conservation districts, which were
  mandated to "review and approve the applications in the manner provided for
  in this chapter."  Id.  When there was a change of use or ownership
  affecting use, however, jurisdiction still reverted to the WRB for a
  determination of public good and public safety.  Id.  
   
       ¶  14.  In 1982, the Legislature passed Act 242, which again amended
  the Dams Act, giving DEC jurisdiction over dam permit applications for all
  projects other than those involving hydroelectricity or agriculture.  1981,
  No. 242 (Adj. Sess.) §§ 2, 5.  The Act also spelled out the different
  procedures the DEC and the PSB were to follow to evaluate each dam permit. 
  To assess the public good and public safety of a project, the DEC was now
  required to hold a public information meeting, while the PSB was to hold a
  hearing.  See id. at § 7.  In a related change, the districts were now
  required to "review and approve the [agricultural dam permit] applications
  in the same manner as would the department."  See id. at § 5.  Similarly,
  if there was a change of use or ownership affecting use, jurisdiction now
  reverted to DEC, rather than to the WRB as it had previously.  See id.  The
  Legislature then expressly gave the WRB jurisdiction to hear appeals from
  DEC permitting decisions.  See id. at § 15.  Appeals from WRB decisions
  went on to superior court.  See id.  Act 242 made no mention of a route of
  appeal for district decisions.  Lastly, in 2002, the Legislature again
  amended § 1099, sending appeals from WRB decisions directly to the Supreme
  Court rather than the superior court, where they were previously heard. 
  2002, No. 94, § 3.  The Legislature once more did not include any mention
  of a route of appeal for district decisions. 

       ¶  15.  The history and purpose of 10 V.S.A. §§ 1083a and 1099 suggest
  that the Legislature intended to keep control over agricultural dams
  separate from regulation of other dams and outside the jurisdiction of the
  WRB.  In 1976, the Legislature expressly and intentionally divested the WRB
  of jurisdiction over agricultural dam permits, giving it to the entirely
  separate natural resource conservation districts.  1975, No. 179 (Adj.
  Sess.), § 5.  In support of this amendment, Fred Mehlman, then Chairman of
  the WRB, engaged in the following exchange before the Senate Natural
  Resources Committee : 

    Sen. Gibb: Let me see if I can understand what this is all about. 
    Under the basic statute the construction of any dam or impoundment
    has to be authorized by the Water Resources Board . . . . This
    amendment gives the authority to approve any dam on an
    agricultural enterprise . . . to the natural resources
    conservation district rather than the Water Resources Board.  Is
    that correct?  

    Mr. Mehlman: That is our understanding of it.  


  Statements of Senator Gibb and Chairman Mehlman on H. 199 to Senate Natural
  Resources Committee, at 7 (Feb. 11, 1976).  Senator Gibb went on to further
  clarify the purpose of § 1083a saying: 

    Sen Gibb: In other words what this comes down to is that the House
    Agricultural Committee does not want to have to go to the Water
    Resources Board to get a permit for construction of a dam.  

    Rep. Steventon: Evidently that is about it.  There is something
    that is bugging them pretty strongly. 

        
  Statements of Senator Gibb and Representative Steventon on H. 199 to Senate
  Natural Resources Committee, at 16 (Feb. 11, 1976). 

  ¶  16.  Moreover, contrary to the appellants' argument, Act 242
  changed little about the regulation of agricultural dam permits and does
  not illustrate the Legislature's intent to give appellate jurisdiction over
  district decisions to the WRB.  Committee testimony surrounding the passage
  of Act 242 suggests that the Legislature did not intend to change anything
  about the existing jurisdiction of the agency involved in agricultural dam
  permitting.  Representative Carse, an advocate of Act 242, explained the
  effect of the bill on the agricultural dam-permitting process saying,
  "[t]he agricultural dams remain exactly the same.  There is no change there
  and they are under the Natural Resource Conservation Districts and they
  approve and regulate those."  Statement of Representative Carse on H.460 to
  House Energy and Natural Resource Committees, at 5 (Dec. 10, 1981).  In an
  April 13, 1982 hearing on Act 242 before the Senate Agricultural Committee,
  Representative Carse again explained that, with respect to agricultural
  dams, "[t]he only thing we changed is . . . . [that] [t]he existing law
  says that when a conservation district wants some help or advice, they may
  request . . . assistance from the agency and all we have done is say they
  request assistance from the department. . . . Otherwise there is no change
  in jurisdiction."  Statement of Representative Carse on H.460 to Senate
  Agricultural Committee, at 7 (Apr. 13, 1982).  Later, in that same hearing,
  Representative Carse and Senator Howrigan had the following exchange:

    Sen Howrigan: Anybody can build a dam [to impound] up to 500,000
    [cubic] feet?  
    Rep. Carse: Yes, and if it is for agricultural purposes, it is not
    under this bill.  Agricultural dams are separate and they are
    under the soil conservation people.  If it is going to produce
    electricity, you have to go to the public service board. 
    Otherwise, you go to the . . . department instead of the board;
    you appeal to the board.  
   
  Statements of Senator Howrigan and Representative Carse on H.460 to Senate
  Agricultural Committee, at 17 (Apr. 13, 1982).  Finally, as Representative
  Carse led the Senate Energy and Natural Resources Committees through the
  bill, he said, "to reassure the agricultural community, we are not changing
  existing law in regard to agricultural dams.  At the present time
  agricultural dams . . . are under the Natural Resources Conservation
  District.  The only change that is made in this is that the department
  instead of the board will now furnish advice to the conservation district
  if they're asked for it."  Statement of Representative Carse on H.460 to
  Senate Energy and Natural Resources Committees, at 22 (March 10, 1982). 

       ¶  17.  These statements indicate that Act 242 was not intended, as
  appellants argue, to change the statutory scheme to provide the WRB with
  jurisdiction over appeals from district decisions, but rather to clarify
  and "separate the functions of the department and the board."  Statement of
  Representative Carse on H.460 to House Energy and House Natural Resources
  Committees, at 3 (Dec. 10, 1981).  The testimony suggests that the
  legislators intended to keep the agricultural dam-permitting process
  separate and apart from the WRB, and that it continue to be administered by
  a completely different agency.  While we have stated that testimony and
  statements of legislative witnesses and individual legislators can be
  "inconclusive at best," Vt. Dev. Credit Corp. v. Kitchell, 149 Vt. 421,
  428, 544 A.2d 1165, 1169 (1988), we cite the committee testimony and
  legislators' discussions here because they convincingly illustrate that the
  Legislature did not intend to give the WRB authority to hear appeals from
  the natural resources conservation districts.
   
       ¶  18.  Finally, we agree with Hinsdale that the plain language of
  the Dams Act suggests that the Legislature knew how to distinguish between
  the jurisdiction, function, and routes of appeal of the different agencies
  with dam-permitting responsibilities.  Its failure to expressly grant the
  WRB jurisdiction over appeals from district decisions, therefore, indicates
  a deliberate effort to exclude agricultural dam permit appeals from the
  WRB's reach.  The Legislature carved out very specific and narrow
  jurisdictions for the three entities responsible for dam permits, leaving
  little question as to which agency was responsible for which subject area
  and where appeals from two of the three agencies should be taken.  See 10
  V.S.A. §§ 1081, 1083a, 1085, 1099.  During every step of the application,
  approval, and appeals processes for dam permits, the Legislature carefully
  spelled out how it wanted to delineate jurisdiction and authority to the
  various dam-permitting agencies.  Its silence as to the route of appeal for
  district permitting decisions should be read as evidence that the
  Legislature did not intend to give the WRB jurisdiction over this appeal. 
  See Grenafege v. Dep't of Employ. Sec., 134 Vt. 288, 290, 357 A.2d 118, 120
  (1976) (employing the precept of expressio unius est exclusio alterius to
  hold that "wages" meant those earned in subject employment where
  Legislature so indicated, but such restriction did not apply where
  Legislature did not so indicate).
   
       ¶  19.  Even the WRB's own rules do not anticipate that it has
  jurisdiction over district decisions.  "[W]here a statute is silent or
  ambiguous regarding a particular matter this Court will defer to agency
  interpretation of a statute within its area of expertise as long as it
  represents a permissible construction of the statute."  In re Smith, 169
  Vt. 162, 169, 730 A.2d 605, 611 (1999).  In its own Rules of Procedure, the
  WRB includes in its list of duties and powers the authority "[t]o hear and
  decide appeals, as provided for by law, from acts or decisions of the
  Secretary of the Agency of Natural Resources and the Commissioner of the
  Department of Environmental Conservation."  Water Resources Board Rules of
  Procedure Rule 1(B)(2), 6 Code of Vermont Rules 12 004 001-3 (2002).  The
  rules do not mention hearing appeals from district decisions.  The WRB's
  own interpretation of its statutory authority is reasonable and comports
  with our reading of the applicable statutes.  On that basis, we must accord
  it deference. 

       ¶  20.  Based on our reading of the relevant statutes,  prior case
  law, and legislative history, we find that the WRB lacks jurisdiction to
  hear appeals from agricultural dam permit decisions of the natural resource
  conservation districts.  At oral argument, appellants insisted that a
  V.R.C.P. 75 appeal to the superior court could not be the correct forum for
  this case.  They based their contention on the fact that under Rule 75, it
  is unclear whether appellants would receive a de novo review in superior
  court and which tribunal should create a record for appellate review.  We
  acknowledge that what level of scrutiny this case should receive in
  superior court and how a record should be created remain open questions,
  ones that should be decided in the first instance by the superior court. 
  See V.R.C.P. 75(d).

       Affirmed.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice