Lake Bomoseen Assn. v. Vermont Water Resources Board

Lake Bomoseen Assn. v. Vermont Water Resources Board (2004-220); 178 Vt. 375;
886 A.2d 355

2005 VT  79

[Filed 15-Jul-2005]

  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.


                                 2005 VT  79

                                No. 2004-220


  Lake Bomoseen Association	                 Supreme Court

                                                 On Appeal from
       v.	                                 Rutland Superior Court


  Vermont Water Resources Board	                 October Term, 2004


  Richard W. Norton, J.

  Jon T. Anderson of Burak Anderson & Melloni, PLC, Burlington, for
    Plaintiff-Appellant.

  William H. Sorrell, Attorney General, and S. Mark Sciarrotta, Assistant
    Attorney General, Montpelier, for Defendant-Appellee.

  Kelly D.H. Lowry of Johnson, Smith, Hibbard & Wildman, Spartanburg, South
    Carolina, for  Intervenor-Appellees Vermont Natural Resources Council and
    Rutland County Audubon.

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

       ¶  1.  DOOLEY, J.   Lake Bomoseen Association appeals from a
  superior court decision dismissing its complaint challenging a wetlands
  reclassification determination by the Vermont Water Resources Board.  The
  trial court ruled that it lacked jurisdiction because: (1) the statutes
  governing wetlands reclassifications provide no express right to judicial
  review, and (2) the reclassification was a rulemaking rather than an
  adjudicative proceeding and therefore not reviewable by a traditional writ
  of certiorari.  We affirm.   


       ¶  2.  The legal and factual background to this appeal may be
  summarized as follows. Among its other statutory duties, the Water
  Resources Board (WRB) is required to "[a]dopt rules for the identification
  of wetlands which are so significant that they merit protection" based on
  certain statutorily defined functions, including contribution to the
  "quality of surface and groundwater through chemical action," control "the
  effects of erosion and runoff, filtering silt and organic matter," and use
  as habitat for fish, migratory birds, and wildlife. 10 V.S.A. § 905(7).
  (FN1)  The WRB is also charged with the duty to "[a]ct on petitions" to
  designate specific wetlands as significant, and to "[a]dopt rules
  protecting wetlands which have been determined . . . to be significant." 
  Id. § 905(8), (9).  Pursuant to this authority, the WRB has promulgated
  Wetland Rules creating three categories of wetlands, denominated Class One,
  Class Two, and Class Three.  Vermont Wetland Rules § 4.1, 6 Code of Vermont
  Rules 12 004 056-10 (2002) [hereinafter VWR].
   
       ¶  3.  Under the Rules, all wetlands shown on the National Wetlands
  Inventory (NWI) Maps published by the United States Fish and Wildlife
  Service are presumptively significant and designated as Class Two.  Id. §
  4.2(b); see also Sec'y, Agency of Natural Res. v. Irish, 169 Vt. 407,
  413-14, 738 A.2d 571, 578 (1999) (upholding presumption that wetlands
  identified on NWI  maps are significant).  Unless otherwise provided by the
  WRB, a fifty-foot buffer zone is imposed around Class Two wetlands "to
  protect those functions that make a wetland significant." VWR § 4.3, at 12. 
  Class One wetlands are defined as those wetlands that are "exceptional or
  irreplaceable in their contribution to Vermont's natural heritage and are
  therefore so significant that they merit the highest level of protection." 
  Id. § 4.1(a), at 10.  Unless otherwise designated by the WRB, a 100-foot
  buffer zone is established around Class One wetlands.  Id. § 4.3, at 12. 
  All other wetlands not determined to be significant are categorized as
  Class Three.  Id. § 4.1(c), at 10.

       ¶  4.  Permitted uses within Class One and Class Two wetlands and
  their surrounding buffer zones are limited, and all other uses require a
  conditional use determination by the Agency of Natural Resources,
  appealable to the WRB.  Id. §§ 6.2, 6.3, 8.6-8.7, at 20-22, 28-29; see also
  10 V.S.A. § 905b(18) (authorizing issuance or denial of conditional use
  determinations).     

       ¶  5.  The Rules establish a procedure for interested persons and
  organizations to petition the WRB for the reclassification of any wetland
  to a higher or lower classification, or for modification of the buffer zone
  associated with a significant wetland. VWR § 7.1(a), at 23.   Upon the
  filing of such a petition, the WRB must provide public notice, allow at
  least thirty days for the filing of public comments, hold a public hearing
  upon request, and issue an "[a]dministrative determination[]" ruling on the
  request for reclassification or modification.  Id. § 7.4(a), at 24;  Water
  Resource Board Rules of Procedure, Rule 15.(D), 6 Code of Vermont Rules 12
  004 001-16 (2002). 
   
       ¶  6.  The instant proceeding commenced in July 2002, when the
  Vermont Natural Resources Council and the Rutland County Audubon Society
  filed a petition with the WRB seeking  reclassification of an area known as
  the Lake Bomoseen Wetland from Class Two to Class One, as well as an
  expansion of the presumptive buffer zone around the wetland from 50 to 100
  feet.  The WRB received over eighty written comments in response to the
  petition, including those of plaintiffs Lake Bomoseen Association,
  comprised of property owners on or near Lake Bomoseen.  The WRB held a
  public hearing in September 2002, conducted a site visit, reopened the
  public comment period on the limited question of whether to vary the
  presumptive 100-foot buffer around Class One wetlands, and issued an
  administrative determination, containing extensive findings and
  conclusions,  in February 2003.  The WRB voted unanimously to reclassify
  the wetland from Class Two to Class One, and determined, with one member
  dissenting, to impose the presumptive 100-foot buffer zone in all but one
  small area at the southeastern portion of the wetland known as Ledgemere
  Point, where preexisting development reduced the wetland's significance and
  thus warranted retention of the 50-foot zone.  The dissenting member (the
  WRB Chair) would have retained the 50-foot zone along  a larger portion of
  the eastern side of the wetlands. (FN2) 
   
       ¶  7.  The Association then filed a complaint in the Rutland
  Superior Court, pursuant to Rule of Civil Procedure 75, challenging the
  administrative determination as arbitrary and a violation of due process. 
  The WRB moved to dismiss the complaint, arguing that the court lacked
  jurisdiction under Rule 75, and that the Association lacked standing.  In
  April 2004, the court issued a written decision, granting the motion. 
  Under Rule 75, "[a]ny action or failure to act by an agency of the state or
  a political subdivision thereof . . . that is not appealable under Rule 74
  may be reviewed in accordance with this rule if such review is otherwise
  available by law."  V.R.C.P. 75(a).  The court noted that the statutes
  dealing with the identification and protection of wetlands are silent on
  the right to judicial review, and therefore concluded that the WRB's
  decision was not appealable under Rule 74, which applies only when a party
  "is entitled by statute" to seek review of an agency decision. V.R.C.P.
  74(a).
        
       ¶  8.  As to whether judicial review was "otherwise available by law"
  under Rule 75, the court noted that the phrase has been interpreted to
  include situations where review was formerly available under the
  traditional prerogative writs at common law, such as certiorari, mandamus,
  and prohibition. See Vt. State Employees' Ass'n v. Criminal Justice
  Training Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997) ("[W]hen . . . 
  legislation is silent on whether review is available, we have permitted
  appeal under Rule 75 so long as review would have been available under any
  one of the extraordinary writs, such as mandamus, scire facias,
  prohibition, quo warranto, and certiorari.").  The court rejected mandamus
  and prohibition, observing that "no official is being requested to perform
  or restrain from performing a particular act."  This left, in the court's
  view, certiorari-the method traditionally used to "review judicial action
  of inferior courts and tribunals," State v. Forte, 159 Vt. 550, 554, 624 A.2d 352, 355 (1993)-as the only relevant writ.

       ¶  9.  The court then proceeded to analyze whether the
  reclassification proceeding was adjudicative in nature, in which case the
  predicate for Rule 75 review would be satisfied, or quasi-legislative, in
  which case certiorari review, and by extension Rule 75 jurisdiction, would
  be precluded.  The court looked to In re Stratton Corp., 157 Vt. 436, 600 A.2d 297 (1991), as the controlling decision in this area.  Applying the
  factors identified in Stratton for assessing whether an agency action is
  rulemaking or adjudication, the court concluded that the WRB's
  administrative determination was not quasi-judicial, and therefore that an
  appeal in the nature of certiorari was unavailable.  Accordingly, the court
  found that it lacked jurisdiction, and dismissed the complaint without
  addressing the parties' remaining claims.  The Association then filed this
  appeal.
   
       ¶  10.  According to the Association, the trial court erred in
  dismissing the appeal for lack of jurisdiction based on its finding that
  the administrative determination reclassifying the Lake Bomoseen Wetland
  was a rulemaking proceeding rather than an adjudication. (FN3)  The statutory
  language leaves little doubt, however, that the Legislature intended the
  wetlands classification process to be a rulemaking proceeding.  As noted,
  the statute directs the WRB to "[a]dopt rules for the identification of
  wetlands which are so significant that they merit protection," and further
  to "[a]dopt rules protecting wetlands which have been determined . . .  to
  be significant." 10 V.S.A. § 905(7), (9); see Stratton, 157 Vt. at 442, 600
  A.2d at __ (statutory language labeling reclassification of streamwaters as
  "rules" indicates legislative intent to treat proceeding as rulemaking). 
  Moreover, although the WRB's Rules of Procedure characterize
  reclassifications as "administrative determinations" rather than as
  rulemaking per se, such determinations are specifically distinguished from
  "contested case proceedings." Water Resources Board Rules of Procedure,
  Rule 15; see Stratton, 157 Vt. at 442, 660 A.2d  at 300 (considering
  streamwater reclassification designations as "contested cases" supported
  finding that they were not intended to be adjudicative proceedings).
   
       ¶  11.  Thus, the question before us is whether, notwithstanding this
  legislative choice, the reclassification process is so inherently
  adjudicative that due process requires trial  procedures.  See Bi-Metallic
  Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445-46 (1915)
  (explaining that due process requirements apply to agency determinations
  only if adjudicative, rather than generalized or legislative in nature). To
  address this question we turn to Stratton.  The issue there did not
  specifically concern jurisdiction-Stratton's appeal from the WRB's
  reclassification of a watercourse was expressly authorized by statute-but
  whether, as Stratton claimed, its due process rights were violated by the
  WRB's use of informal rulemaking or quasi-legislative procedures, rather
  than a "trial-type hearing to adjudicate disputed facts."  Id. at 440, 600 A.2d  at 299.   Stratton identified three factors for assessing whether
  agency action is in the nature of a rulemaking proceeding:

    (1) whether the inquiry is of a generalized nature, rather than
    having "a specific, individualized focus"; (2) whether the inquiry
    "focuses on resolving some sort of policy-type question and not
    merely resolution of factual disputes"; and (3) whether the result
    is of "prospective applicability and future effect."

  Id. at 443, 600 A.2d  at 301 (quoting 1 C. Koch, Administrative Law &
  Practice § 2.3, at 61-62 (1985)).
   
       ¶  12.  Applying these factors here, we have little difficulty
  affirming the trial court's finding that the wetlands reclassification is a
  rulemaking or legislative decision that does not demand the due process
  protections of a trial-type proceeding.   First, as we observed of the
  stream reclassification proceeding in Stratton, the wetlands
  "reclassification inquiry involves examination of generalized issues beyond
  the scope of the immediate parties rather than issues of fact focused
  primarily on the rights and duties of these parties."  Id. (citation
  omitted).  The eleven statutorily defined functions that the WRB must
  consider in determining the significance of a wetland for classification
  purposes implicate the interests of all the state's citizens and its
  environment, not simply the interests of owners of property adjacent to the
  wetland.  See id. (noting that the ten criteria for classification of
  streamwaters "relate to the interests of all citizens of the state"). 
  Second, the wetlands reclassification determination turns on a policy
  judgment-based on a consideration and balancing of numerous scientific,
  economic, and aesthetic factors-concerning the level of protection to be
  afforded a public resource.  See id. at 444, 600 A.2d  at 301 (explaining
  that classification of stream involved "weighing" of public benefits and
  private rights, and "[s]cientific, economic and technical factors . . . not
  . . . conducive to resolution in a trial-type hearing").  Finally, the
  wetlands reclassification decision is a rule of prospective applicability,
  affecting potential future land uses, not past conduct.

       ¶  13.  All of the pertinent factors thus support the conclusion that
  the wetlands reclassification was a rulemaking or legislative determination
  rather than an adjudication.  The fact that the WRB applied statutorily
  defined criteria to its decision does not, as the Association argued,
  compel a different result.  See id. at 443, 600 A.2d  at 301 (finding that
  stream reclassification was legislative where WRB applied ten policy-based
  statutory criteria to decision).  Nor does the decision's disproportionate
  affect on the adjacent landowners require a finding that it was
  adjudicative.  See id. at 444-45, 600 A.2d  at 301-02 (where stream
  reclassification affected public generally, fact that principal landowner's
  interest may be greater than other members of the public does not "turn a
  public issue into a private contest"). Nor, finally, does reduction of the
  presumptive 100-foot buffer for a relatively small portion of the wetlands
  imply that the decision is necessarily judicial in nature.  The decision to
  reduce the buffer-zone was based on the same policy-based criteria as the
  decision to upgrade the wetlands classification generally; in reducing the
  buffer zone around Ledgemere Point, the WRB concluded that the balance of
  factors, particularly the impact on wildlife habitat and aesthetic
  functions, dictated a different result in this more developed area. 
  Accordingly, we discern no basis to disturb the court's conclusion that the
  wetlands reclassification proceeding was not an adjudication, and therefore
  not subject to certiorari review.
   
       ¶  14.  Our conclusion that the reclassification proceeding was not
  adjudicative in nature disposes of the Association's related claim that it
  was improperly denied certain due process protections, including the right
  to confront and cross-examine witnesses, otherwise required of an
  adjudicative proceeding.  Nevertheless, the dissent would grant judicial
  review of wetland reclassification determinations based on a theory not
  argued by the Association-that a sentence in a WRB wetland rule creates a
  right of review under Rule 75.  The dissent suggests that the Legislature
  acquiesced to judicial review of reclassification determinations because
  the legislative committee on administrative rules did not object to the
  statement of judicial review contained in the Board rule.  The dissent
  makes this presumption even though the statute creating the legislative
  committee explicitly states that the committee's failure to object to a
  rule "is not an implied legislative authorization of [the rule's]
  substantive or procedural lawfulness."  3 V.S.A. § 842(b)(4).

       ¶  15.  The dissent's position is unsupportable for several reasons. 
  The WRB rule that the dissent relies on does not purport to create review
  jurisdiction and, of course, could not do so even if the WRB intended that
  result.  Further, even assuming that the WRB could create jurisdictional
  review, the Legislature did not acquiesce to judicial review of wetland
  reclassification determinations merely because the legislative committee on
  administrative rules failed to object to a sentence on judicial review
  contained in the WRB rule.  Finally, even if we were to assume that the
  Legislature acquiesced to the WRB rule, it would be acquiescing only to the
  unremarkable proposition that judicial review is available as provided in
  Rule 75, which, as the dissent concurs, is no review at all.

       ¶  16.  The WRB rule that the dissent relies on is Section 9 of the
  VWR, which is entitled "APPEALS" and provides as follows:

      Any act or decision of the Secretary under these rules may be
    appealed within 30 days to the Board pursuant to 10 V.S.A. Section
    1269 in accordance with the Board's Rules of Procedure.  Any final
    decision of the Board on an appeal may be appealed as provided for
    in 10 V.S.A. Section 1270.

      Except as provided for in 3 V.S.A. Chapter 25, appeals of any
    Board decision related to a petition filed and decided under
    Section 7, may be reviewed by the applicable court as provided for
    in Rule 75 of the Vermont Rules of Civil Procedure.

  VWR § 9, at 30.  Specifically, the dissent relies upon the sentence in the
  second paragraph, which references Section 7 of the rules-the section
  governing wetland reclassification petitions. (FN4)  That sentence states
  that appeals of any WRB decision under Section 7 "may be reviewed by the
  applicable court as provided for in Rule 75 of the Vermont Rules of Civil
  Procedure."  Id. (emphasis added).
   
       ¶  17.  As the dissent recognizes, the WRB cannot create or extend
  court jurisdiction through its rules.  Hence, the WRB was simply stating
  its understanding of available judicial review.  For adjudicative decisions
  under Title 10, Chapter 47, Subchapter 1, the statement is unremarkable and
  clearly correct.  For classification decisions, the WRB merely referred to
  Rule 75 as providing the availability of review.  The fact that the WRB may
  have incorrectly assumed that judicial review of wetland reclassification
  determinations is available under Rule 75 is hardly surprising.  Rule 75 is
  intended to replace the common law prerogative writs of certiorari,
  mandamus, scire facias, quo warranto and prohibition.  As our decisions
  demonstrate, the availability and scope of these writs, if available, are
  not obvious.  See, e.g., Forte, 159 Vt. at 554-57, 624 A.2d  at 355-57.  The
  WRB may simply have wanted to err on the side of allowing judicial review. 
  The dissent would, however, turn the WRB's misunderstanding over the
  applicability of Rule 75 into an affirmative assertion of judicial review
  irrespective of what is otherwise authorized by law.  This is not a tenable
  interpretation of VWR § 9 because it assumes that the WRB intended to
  create review jurisdiction by rule, an action plainly beyond its power.

       ¶  18.  The dissent nonetheless would find superior court
  jurisdiction, noting that the Legislature has provided for judicial review
  of quasi-legislative stream reclassifications.  This reasoning is not
  persuasive.  The fact that the Legislature has explicitly provided for
  judicial review with respect to other quasi-legislative administrative
  determinations demonstrates, if anything, that the Legislature knows how to
  provide for judicial review when it wants but did not do so with respect to
  wetland reclassification decisions.  Indeed, this point is illustrated in
  10 V.S.A. § 905, which sets forth the WRB's duties and powers with respect
  to water resources management.  While § 905(7)-(9) allow the WRB to adopt
  rules regarding wetlands without any provision for superior court review of
  those rules, § 905(2) authorizes the WRB to adopt rules governing the
  surface levels of lakes and ponds and expressly provides that aggrieved
  persons can appeal those rules to the superior court.
   
       ¶  19.  In essence, the dissent would hold that the Legislature can
  create a jurisdictional authorization by silence, a novel theory for which
  it offers no support.  Even assuming that the theory might be valid in
  another context, it is not valid here for several reasons.  First, VWR § 9
  does not purport to create or extend judicial review under Rule 75; rather,
  it merely states that judicial review is available as provided in Rule 75,
  which, as the dissent agrees, is no review at all.

       ¶  20.  Second, this is not a case of deferring to the WRB's
  construction of a statute over which the Legislature has given it governing
  authority.  Rather, to the extent that the WRB is interpreting anything, it
  is interpreting Rule 75, a court rule in which it has no expertise or
  governing authority.  See N. Singer, 2B Sutherland on Statutes and
  Statutory Construction § 49:05, at 83 (6th ed.2000) ("Deference does not
  extend to whether the agency's decision is subject to judicial review as
  that question is within court's own expertise."); cf. In re Tariff Filing
  of Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 19-20, 769 A.2d 668, 673 (2001)
  (administrative agencies are not entitled to deference with respect to
  their interpretation of the applicability of judicially created doctrines).
   
       ¶  21.  Third, as noted, there is no acquiescence on the part of the
  Legislature here, and even if there was, it would be acquiescence only to
  VWR § 9's acknowledgment that judicial review is available as provided in
  Rule 75.  Although some courts have held that legislative inaction
  following a contemporaneous interpretation is evidence of that
  legislature's intent to adopt the interpretation, "[t]he acquiescence of
  the legislature seems to be of small consequence where the statute or its
  contemporaneous interpretation was not called to the legislature's
  attention." Sutherland, supra § 49:10, at 112-14, 117 ("Legislative
  inaction has been called a 'weak reed upon which to lean' and a 'poor
  beacon to follow' in construing a statute."  The dissent presumes that the
  Legislature knew of the review issue contained in VWR § 9 merely because
  the Administrative Procedures Act (APA) created a legislative committee on
  administrative rules, 3 V.S.A. § 817, and gave that committee the right to
  object if a rule "is beyond the authority of the agency" or "contrary to
  the intent of the legislature," id. § 842(b)(1), (2).  This presumption is
  not supportable, given that the APA expressly states that the committee's
  failure to object to a rule should not be construed to show legislative
  acquiescence: "The failure of the committee to object to a rule is not an
  implied legislative authorization of its substantive or procedural
  lawfulness."  Id. § 842(b)(4) (emphasis added).

       ¶  22.  Moreover, even if the APA did not expressly foreclose
  legislative acquiescence based on the committee's failure to object to a
  rule, the situation here is a far cry from Town of Killington v. State, 172
  Vt. 182, 776 A.2d 395 (2001), upon which the dissent relies.  In
  Killington, 172 Vt. at 192-94, 776 A.2d  at 403-04, we accepted as evidence
  of legislative intent an official contemporaneous letter from a legislative
  committee explicitly established by the Legislature to implement the
  statute being construed and to oversee the rules and policies of the
  agencies and school districts governed by the statute.  Here, in contrast,
  the dissent would presume legislative acquiescence simply because the
  administrative rules committee did not object to a single sentence in the
  wetland rules stating that review of the WRB's decisions regarding wetland
  reclassification petitions is available as provided in Rule 75.
   
       ¶  23.  The other case relied upon by the dissent, Vincent v. Vt.
  State Ret. Bd., 148 Vt. 531, 536 A.2d 925 (1987), marks the proper limit in
  presuming a right to review when that right is not made explicit.  Unlike
  the instant case, Vincent concerned judicial review of an adjudicative
  administrative determination.  Indeed, Vincent would be an unremarkable
  example of review of an adjudicative decision under Rule 75, except that
  the State argued that the language of the governing statute-that the
  retirement board's decision will allow an offset "in such manner as the
  retirement board shall determine"-gave the board unreviewable discretion. 
  Id. at 534, 536 A.2d  at 927-28.  We found the language ambiguous, however,
  and held that, in the face of the ambiguity, we would err on the side of
  allowing judicial review under Rule 75.  Id.  Here, in contrast, there is
  no right to judicial review, and no ambiguous legislative language to
  overcome.  Instead of refusing to find in uncertain legislative action a
  barrier to traditional common-law review, which is the holding of Vincent,
  the dissent would find in legislative silence the creation of review where
  the common law would deny it.  We find nothing in the decision that would
  support such a contrary application of judicial review.

       ¶  24.  To sum up, the Legislature has not provided for review of
  wetland reclassification determinations, and the WRB rule stating that
  review is available as provided in Rule 75 does not create or extend review
  under Rule 75, which does not provide for review of such determinations. 
  Further, the Legislature's silence in the face of the WRB rule is not
  binding acquiescence, and, even if it is, the Legislature would be
  acquiescing only to the statement that Rule 75 controls the scope of review
  of wetland reclassification determinations.  Accordingly, the superior
  court properly dismissed the Association's appeal for lack of jurisdiction.

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice

        

------------------------------------------------------------------------------
                          Concurring and Dissenting


       ¶  25.  REIBER, J., concurring and dissenting.     I concur in the
  Court's holding that the decision of the Water Resource Board to reclassify
  the Lake Bomoseen Wetland is a rulemaking rather than an adjudicative
  proceeding.  I do not agree, however, that this conclusion necessarily
  disposes of the ultimate question of whether the decision is appealable. 
  The right to "a certain remedy, by having recourse to the laws" is of
  constitutional dimension in Vermont. Vt. Const. ch. I, art. 4.   The
  Legislature may, to be sure, define and limit the legal remedies available
  to litigants, but where-as here-we interpret a statute to bar virtually all
  right of judicial access and review, the evidence of such an intent should
  be clear, conclusive, and unambiguous.  This is not such a case. 
  Accordingly, I respectfully dissent. 

       ¶  26.  Unlike other decisions of the Water Resource Board (WRB), such
  as those dealing with stream reclassifications and discharge permits, the
  chapter governing wetlands classifications contains no express provision
  affording a right to judicial review.  Cf. 10 V.S.A. § 1270 (granting
  persons aggrieved by decisions of WRB under subchapter dealing with stream
  classifications and waste permits appeal to Supreme Court). The Vermont
  Wetlands Rules promulgated by the WRB specifically provide, however, that
  administrative wetlands reclassifications "may be reviewed by the
  applicable court as provided for in Rule 75 of the Vermont Rules of Civil
  Procedure." Vermont Wetlands Rules § 9, 6 Code of Vermont Rules 12 004
  056-30 (2002) [hereinafter VWR].  Under the Administrative Procedure Act,
  these rules were reviewed by a legislative committee authorized to object
  on the grounds that they were beyond the WRB's authority or contrary to the
  Legislature's intent.  3 V.S.A. § 842(b).  There is no evidence of such an
  objection, however, and VWR § 9 authorizing appeal of wetlands
  reclassifications to the superior court under Rule 75 has remained in
  effect since its enactment.  
   
       ¶  27.  While the committee's acquiescence in the rule may not prove
  an intent to endorse its substantive terms, see 3 V.S.A. § 842(b)(4)
  (clarifying that committee's failure to object "is not an implied
  legislative authorization of its substantive or procedural lawfulness"),
  the fact remains that VWR § 9 providing for judicial review of wetlands
  reclassifications triggered no apparent legislative red flags, adverse
  comment, or reservations.   One may question, to be sure, whether the
  committee was actually aware that the VWR § 9 provided a right to judicial
  review where the statutory scheme was otherwise silent.  If we are to be
  realistic, however, one must also question whether the absence of an
  express statutory right to judicial review in the chapter governing
  wetlands classifications was a conscious legislative choice or merely an
  inadvertent oversight.  If the Legislature had actually intended to bar
  judicial review of wetlands reclassifications it could easily have
  expressed that intent in a clear and straightforward manner-as it has
  elsewhere-by simply stating that the WRB's wetland classification decisions
  are final and are not subject to judicial appeal. See, e.g., 32 V.S.A. §
  5929(b)(3) (providing that decisions of emergency board granting or denying
  new jobs tax credit certification "shall be final, and shall not be subject
  to administrative or judicial appeal"); id. §5930a(g) (providing that
  decisions of Vermont Economic Progress Council granting or denying
  applications for economic incentives "shall be final and not subject to
  judicial review").   The Legislature failed to do so.  Confronted with this
  combination of administrative mandate and legislative silence, I am
  prepared, at the least, to find evidence of ambiguity. 
   
       ¶  28.  When the right to appeal may fairly be characterized as
  ambiguous, courts are generally loathe to deny such a right, even when the
  governing statute is silent.  Our decision in Vincent v. Vermont State
  Retirement Board, 148 Vt. 531, 536 A.2d 925 (1987), is instructive in this
  regard.  There, plaintiff filed a complaint seeking judicial review of a
  Retirement Board decision offsetting plaintiff's workers' compensation
  benefits against his disability retirement benefits.  The Board argued that
  the court lacked jurisdiction, noting that the statute afforded plaintiff
  no express right to judicial review.  We rejected the argument, however,
  observing that the Legislature could have explicitly denied judicial review
  (citing a former section of the worker's compensation law which provided
  that "decisions of the Board shall be final"), but "did not express such an
  intent in the legislation establishing the Vermont state retirement
  system."  Id. at 533-34, 536 A.2d  at 927-28.  Citing Chapter I, Article 4
  of the Vermont Constitution that "[e]very person within this state ought to
  find a certain remedy, by having recourse to the laws, for all injuries or
  wrongs which one may receive in person, property or character," we
  expressed "hesita[tion] to interpret arguably ambiguous legislation as
  foreclosing judicial review of administrative agency decisions."  Id. at
  534 n.2, 536 A.2d  at 972 n.2.  Accordingly, we held that the Board decision
  was subject to  review.  Id. at 534, 536 A.2d  at 928.  
   
       ¶  29.  Here, the statute is similarly silent on the subject of
  judicial review of wetlands reclassifications.  Unlike Vincent, however,
  the agency authorized to interpret and apply the statute  has explicitly
  authorized judicial review, and the Legislature has not seen fit to
  overrule that decision.  Although an agency may not, of course, exceed the
  powers expressly granted or necessarily implied by the enabling
  legislation, "we generally defer to interpretations of enabling legislation
  by an administrative agency."  Perry v. Med. Practice Bd., 169 Vt. 399,
  403, 737 A.2d 900, 903 (1999); see also Dutton v. Dep't of Soc. Welfare,
  168 Vt. 281, 284, 721 A.2d 109, 111 (1998) (noting that "where a statute is
  silent as to a specific issue, we will defer to an agency's interpretation"
  if based on permissible construction). Furthermore, while questions of
  judicial review may not lie within the precise expertise of the WRB, we
  note again that VWR § 9 was at least subject to legislative oversight, and 
  has not been questioned or overruled.  See Town of Killington v. State, 172
  Vt. 182, 194, 776 A.2d 395, 404 (2001) (citing United Hosp. Ctr., Inc. v.
  Richardson, 757 F.2d 1445, 1451 (4th Cir. 1985) that administrative
  regulations presented to legislative oversight committee by the
  administering agency "without disapproval are entitled to considerable
  weight as expressive of legislative purpose").

       ¶  30.  Under these circumstances, therefore, I agree with the Court's
  observation in Vincent that we should be "hesitant to interpret" ambiguous
  legislation as "foreclosing judicial review."  Vincent, 148 Vt. at 534 n.2,
  536 A.2d  at 927 n.2   To be sure, Vincent involved a traditionally
  adjudicative decision rather than-as in this case-a rulemaking or
  quasi-legislative determination.  This fact alone does not, however,
  preclude judicial review.  Indeed, the Legislature has provided for appeals
  to this Court from stream reclassifications, which-as we held in
  Stratton-are also quasi-legislative in nature.  Stratton Corp., 157 Vt. at
  445, 600 A.2d  at 302; see 10 V.S.A. § 1270 (providing for appeals of stream
  reclassifications to Supreme Court).  Furthermore, we may be assured that
  any possible error in interpreting the statute to allow for judicial review
  of wetlands reclassifications may be addressed through legislative
  amendment or clarification. 

       ¶  31.  Accordingly, I would reverse the trial court judgment
  dismissing the complaint, and hold that the Association is entitled to
  judicial review to determine whether the WRB's decision was a clear and
  arbitrary abuse of authority.  More specifically, the question for the
  trial court on remand-should it reach the issue-would be whether the WRB
  committed a clear and manifest abuse of its statutory duty by reclassifying
  the Lake Bomoseen Wetland based on criteria which the Association claims do
  not adequately distinguish Class One from Class Two wetlands, in violation
  of its due process rights. (FN5)  

       I am authorized to state that Retired Chief Justice Allen joins in
  this dissent.



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Under recent legislative amendments, the Environmental Board and the
  WRB were consolidated into one Natural Resources Board, with the authority
  to exercise the regulatory functions formerly exercised by the two boards,
  and all references to the WRB in the chapter dealing with wetlands
  regulation were accordingly amended to refer to the water resources panel
  of the Natural Resources Board.  2003, No. 115 (Adj. Sess.), § 16.

FN2.  The WRB subsequently denied a motion to alter filed by Alan and
  Claudia Wulff, property owners on the western portion of the wetland,
  seeking to reduce the buffer zone adjacent to their property from 100 to 50
  feet.  The WRB Chair again filed a short dissent.  The Wulffs filed a
  separate appeal with the Rutland Superior Court, pursuant to Rule 75. 
  Noting that its review of agency determinations was limited to whether the
  WRB had acted arbitrarily, unreasonably, or contrary to law, and that
  agency findings within its area of expertise are entitled to great
  deference, the court found that the WRB decision was reasonable and well
  founded, and therefore affirmed.  That decision is the subject of a
  separate appeal to this Court.  In re Lake Bomoseen Wetland, No. 2004-002
  (Vt. filed Jan. 2, 2004).

FN3.  The Association does not challenge, and the dissent does not question,
  the trial court's ruling that quasi-legislative determinations are not
  otherwise appealable under Rule 75.

FN4.  Neither the parties nor the dissent has claimed that review is
  provided by the first paragraph, but it is still instructive to look at
  that paragraph.  Section 1270 of Title 10 allows appeals to the Supreme
  Court from "any final order or decision of the board pursuant to this
  subchapter." Section 1269 provides a commensurate right to appeal to the
  WRB from decisions of the Secretary of the Agency of Natural Resources. 
  The subchapter referenced in § 1270 is Subchapter 1 of Chapter 47 of Title
  10, titled "Water Pollution Control," which includes §§ 1250-1284.  The
  only section of the subchapter that relates to wetlands is § 1272, which
  allows the agency to issue orders that address violations of wetland rules. 
  Such actions are, of course, adjudicative in nature and do not concern
  petitions for reclassification of wetlands, which are authorized in a
  separate subchapter.  Therefore, the appeal provisions in §§ 1269 and 1270,
  by their own terms, do not allow for review of a wetland reclassification.

FN5.  Of course, the trial court would not need to address this question
  unless it determines that the Association had standing to bring the claim.