State of Vermont Superior Court—Environmental Division

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In re Frostbite Mine Docke t No. 12-1-11 Vtec (Appeal from Environmental Commission District Coor dinator Jurisdictional Opinion)

Title: Motion to Strike/Clarify SOQ (Filing No. 1)

Filed: March 8, 2011 Filed By: Appellee Vermont Natural Resource Board/L and Use Panel Response in opposition filed on 4/15/11 by Appellan t Windsor Minerals, Inc. Reply to response in opposition filed on 4/28/11 by Appellee NRB and Interested Person ANR Sur-Reply in opposition filed on 5/3/11 by Appellan t Windsor Minerals, Inc.

___ Granted ___ Denied X Other

Background Windsor Mills, Inc. (“Appellant”) appeals a jurisdi ctional opinion issued by the District 2 Environmental Commission Coordinator (“the Distri ct Coordinator”), and has filed a Statement of Questions (“SOQ”) outlining 31 questio ns for appeal. The District Coordinator concluded that, despite the closure of the Frostbit e Mine in Ludlow, Vermont, Act 250 jurisdiction remains attached to the mine based on alleged permit violations and unpermitted material changes to the development prior to the mi ne closure. The Vermont Natural Resources Board Land Use Panel (“NRB”) has now filed a motion to strike the “Historical and Current Background” and “Definitions” sections of the SOQ a s well as 29 of the 31 questions. Historical Background and Definitions Sections NRB moves to strike the historical background and d efinition sections of Appellant’s SOQ, arguing that such sections are inappropriate a t the pleading stage. Any statement of questions filed with this Court op erates much like a complaint in a civil proceeding. In re Waitsfield Pub. Water Sys. , No. 33-2-10 Vtec, slip op. at 8 (Vt. Super. Ct. Envtl. Div. Nov. 2, 2010) (Durkin, J.); Reporter’s Notes, V.R.E.C.P. 5(f) (stating that the statement of questions “functions like a pleading to limit th e issues that are to be heard on the appeal”). That is, one of its purposes is to give notice of t he issues that will be raised on appeal. See Prive v. Vt. Asbestos Grp., 2010 VT 2, ¶ 15, 187 Vt. 280 (“The key to whether a complaint is sufficient is notice . . . .”); see also V.R.C.P. Rule 8(a) (s tating that a complaint should contain “a short and plain statement of the claim showing that the plead er is entitled to relief”); Reporter’s Notes, V.R.C.P. Rule 8(a) (“[T]he rules do not require a s pecific and detailed statement of the facts . . . but simply a statement clear enough ‘to give the de fendant fair notice of what the plaintiff’s claim is and the grounds on which it rests.’” (citi ng Conley v. Gibson, 355 U.S. 41, 47 (1957))). AIn re Frostbite Mine, No. 12-1-11 Vtec (Entry Order on NRB’s Motion to Strike) (11-03-2011) Pg. 2 of 3.

statement of questions also serves to set the param eters of the appeal. See Appeal of Town of Fairfax, No. 45-3-03 Vtec, slip op. at 4 (Vt. Envtl . Ct. June 13, 2005) (Wright, J.). Here, although the Court finds the Historical Backg round and Definitions sections helpful, they are unnecessary to provide notice or define the scope of the appeal, as the questions themselves serve that function. As such, the Historical Background and Definitions sections are inappropriate additions to the SOQ. W e therefore GRANT the NRB’s motion to strike the Historical Background and Definitions se ctions and direct Appellant to file a revised SOQ omitting those sections. Proper Standard Under Act 250 Rule 34 NRB contends that Appellant erroneously discusses a “substantial and material change” standard in questions 2–4, 7, 9, 12–14, and 19, thu s combining the standards from Act 250 Rule 34(A) (requiring a “material change” for “permitted ” projects) and Rule 34(B) (requiring a “substantial change” for “pre-existing” projects). According to NRB, Act 250 Rule 34(A) controls, and therefore the proper standard for the Court to apply is whether there was a “material change” to the permitted development. In its response, Appellant contends that this case does not fit squarely within either Act 250 Ru le 34(A) or Rule 34(B). Absent a determination that an appellant’s statemen t of questions raises issues beyond the scope of this Court’s jurisdiction, we are unaw are of the authority for this Court, or an appellee for that matter, to direct that appellants use specific verbiage in their questions. We do not regard NRB’s motion as a challenge to this Cour t’s jurisdiction to address legal issues raised under Act 250 Rule 34(B). However, so that we may properly analyze this issue, the Court directs Appellant to clarify its response to this a spect of NRB’s motion. Specifically, Appellant should address whether the project predates the ado ption of Act 250, and, to the extent it does not, how Act 250 Rule 34(B) is applicable to this a ppeal. Conversion to Motions for Summary Judgment In the course of reviewing the parties’ pleadings, the Court has determined that NRB’s motion to strike is essentially a motion to dismiss . However, because we must consider matters outside the pleadings to resolve the issues present ed, it is appropriate to convert NRB’s motion to dismiss into a motion for summary judgment. See V.R.C.P. Rule 12(b)(6) (stating that the Court must treat a motion to dismiss as a motion fo r summary judgment under Rule 56 when “matters outside the pleading are presented to and not excluded by the court”). We note that the parties have already submitted sub stantial legal memoranda and factual representations. However, we wish to give the parties the opportunity to submit any additional supplemental legal memoranda or affidavi ts for the Court’s consideration. See V.R.C.P. 12(b)(6) (directing that when a trial cour t converts a pending motion to one requesting summary judgment, “all parties shall be given reaso nable opportunity to present all material made pertinent to such a motion by Rule 56”). Accordingly, NRB shall have until Friday, November 25, 2011 to submit any additional material in support of its pending motion. Appella nt and ANR shall have until Friday, December 9, 2011 to submit additional responses to NRB’s filings

. If the parties do not wish to file supplemental material, they should promptly in form the Court so that the Court may proceed to make a final determination on the pendin g motion.In re Frostbite Mine, No. 12-1-11 Vtec (Entry Order on NRB’s Motion to Strike) (11-03-2011) Pg. 3 of 3.

Conclusion Appellant is directed to submit a revised SOQ omitt ing the Historical Background and Definitions sections by Monday, November 14, 2011 . NRB shall have until Friday, November 25, 2011 to submit any additional material in support of its pending motion. Appellant and ANR shall have until Friday, December 9, 2011 to submit additional responses to NRB’s filings. If the parties do not wish to fi le supplemental material, they should promptly inform the Court so that the Court may proceed to m ake a final determination on the pending motion.

_________________________________________ November 3, 2011 _ Thomas S. Durkin, Judge Date

=================================================== ========================== Date copies sent to: ____________ Clerk's Initials _______ Copies sent to: George McNaughton, Attorney for Appellant Windsor M inerals, Inc. John H. Hasen, Attorney for Appellee Natural Resourc es Board/Land Use Panel Jon Groveman, Attorney for Interested Person Agency of Natural Resources