State of Vermont

Superior Court - Environmental Division

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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 da iry manufacturing facilities. Applicant: Agri-Mark, Inc., d/b/a as Cabot Creame ry (Appeal from ANR Indirect Discharge-Su rface Water Permit Amendment

Title: Motion to Dismiss for Lack of Party Status a nd Standing (Filing No. 1)

Filed: April 30, 2010

Filed By: Ross A. Feldmann, Attorney for Appellee A gri-Mark, Inc.

Response in Opposition filed on 05/10/10 by Appella nt Jessica Miller Reply to Response filed on 05/14/10 by Appellee Agr i-Mark Sur-Reply in opposition filed on June 9, 2010 by Ap pellant 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 Reso urces, 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 manufact uring facility in Cabot, Vermont. These by-products of the Cabot manufactur ing activities are applied by spray to disposal fields and directly to agricultur al fields in approximately thirty-one towns throughout Central Vermont. The d airy by-product then leaches through the soils in these various fields and ultim ately results in indirect discharges into various receiving streams and water s of the State.
Agri-Mark, Inc., d/b/a Cabot Creamery (“Permittee”) responded to Appellant’s filings with a motion to dismiss, alleg ing that because Appellant does not satisfy the statutory requirements for par ty 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 adjudicat ing disputes where there exists a “live controversy” between adverse l itigants with standing to assert their respective claims. In re Keystone Dev elopment Corp. , 2009 VT 13,

1 On May 5, 2010, Agri-Mark also filed an “Amended Motion to Dismiss for Lack of Party Status and Stan ding.” This filing appears to supplement Agri-Mark’s original m otion, filed on April 30, 2010, and to be a respons e to Appellant Miller’s “Second Correction to [her] Notice of Appe al,” filed on May 3, 2010. Ms. Miller also filed a “Third Correction to Notice of Appeal” on May 4, 2010. We have consi dered 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 determina tion 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 righ t to appeal a land use determination finds its foundation, in part, in the se constitutional limitations. Our Legislature further determined th at a person may only appeal a land use determination, such as the amended indirec t 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 provi sions 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 re asons expressed below, we conclude that Appellant has not put forth sufficien t evidence to support a finding that she is a “person aggrieved,” or otherw ise shown another factual basis to support a finding of party status or stand ing. For these reasons, we conclude that her appeal must be DISMISSED.

First, we note that because the Permittee has chose n 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 factua l allegations . . . and all reasonable inferences to be drawn from them, and ta ke[] 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.” Gilm an v. Maine Mutual Fire Ins.
Co. , 2003 VT 55, ¶ 14, 175 Vt. 554 (citing Ass'n of Ha ystack Prop. Owners v. Sprague , 145 Vt. 443, 446-47 (1985) and 5 C. Wright & A. M iller, Federal Practice and Procedure § 1357, at 598 (1969)).

Even in this favorable light, we have been unable t o discern facts that could conceivably support a legal conclusion that A ppellant has standing in these permit proceedings. Amended Permit No. ID-9- 0043-5 appears to provide authority for extensive spraying and land applicati on of dairy manufacturing byproduct. However, Appellant appears to allege that her home is no closer than three and a half miles from the project sites. App ellant complains of damage she previously incurred when her vehicle was spraye d by Permittee’s trucks, but does not provide any connection to the damage she o nce may have suffered, or a fear of that occurring again, and the activities au thorized 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 f act, a challenge to Permittee’s underlying Act 250 permit would have be en a more appropriate proceeding in which to raise traffic impact concern s; Appellant acknowledges that she was a party to those Act 250 proceedings, suffered an adverse
determination at the hands of the District Commissi on, and chose not to appeal.
Those District Commission determinations have there fore become final.

In summary, Appellant appears to raise sincere and perhaps legitimate concerns about the general operation of the Cabot C reamery, but has failed to provide us with a factual basis for addressing thos e 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 ame nded indirect discharge permit should be granted. Without a factual founda tion to support her standing to raise those concerns, we are without the jurisdi ctional authority to address her concerns in this proceeding. For these reasons , we must DISMISS her appeal.

___________________________________________ __ __July 20, 2010

_____ Thomas S. Durkin, Judge Date

=================================================== ============================= Date copies sent to: ____________ Cle rk's Initials _______
Copies sent to: Appellant Jessica Miller
Attorney Ross A. Feldmann for Appellee Agri-Mar k, Inc.
Attorneys Catherine Gjessing and Cielo Marie Me ndoza for the Vermont Agency
of Natural Resources