ANR v. Town of Lowell and Pion

ENTRY REGARDING MOTION

Count 1, ANR Enfc. Administrative Order (57-5-15 Vtec)

Title: Motion for Costs (Motion 7)

Filer: Bruce Pion

Attorney: Jennifer B. Colin

Filed Date: January 22, 2016

Response filed on 02/03/2016 by Attorney Randy Joe Miller for Petitioner Agency of Natural 

Resources

Opposition 

Response filed on 02/10/2016 by Attorney Ronald A. Shems for Respondent Town of Lowell

Reply 

Response filed on 02/24/2016 by Attorney Randy Joe Miller for Petitioner Agency of Natural 

Resources

Reply 

The motion is DENIED.

Count 1, ANR Enfc.Administrative Order (57-5-15 Vtec)

Title: Motion for Costs (Motion 8)

Filer: Town of Lowell

Attorney: Ronald A. Shems

Filed Date: January 25, 2016

Response filed on 02/03/2016 by Attorney Randy Joe Miller for Petitioner Agency of Natural 

Resources

Opposition 

Response filed on 02/10/2016 by Attorney Ronald A. Shems for Respondent Town of Lowell

Reply 

Response filed on 02/24/2016 by Attorney Randy Joe Miller for Petitioner Agency of Natural 

Resources

Reply 

The motion is DENIED.

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Docket No. 57-5-15 Vtec
Pending before the Court are motions for costs filed by the Town of Lowell (Town) and 

Bruce Pion, who are Respondents in this enforcement appeal. The underlying matter is an 

appeal of an administrative order (AO) issued by the State of Vermont Agency of Natural 

Resources (ANR) that cites Respondents for altering a watercourse without a permit and 

causing a discharge into waters of the state without a permit, in violation of state law. See 10 

V.S.A. §§ 1021(a), 1022; 10 V.S.A. § 1259(a). In the AO, ANR alleges that the Town contracted 

with Mr. Pion to replace a failed thirty-inch-diameter culvert, which was intended to convey an 

unnamed tributary under a Town road, with a five-foot-diameter culvert. Mr. Pion installed the 

five-foot culvert some eighty feet down the road from the original culvert. Sometime 

thereafter, the five-foot culvert failed, causing 35 feet of road to collapse and a substantial 

amount of material to discharge into the tributary. 

ANR served its AO on Respondents on May 15, 2015. On September 18, 2015, the Town

filed a motion to dismiss, arguing that ANR’s pre-trial memorandum did not satisfy the 

disclosure requirements of 4 V.S.A. § 1004(a). One week later, the Town served three of ANR’s 

witnesses with notices of deposition duces tecum. ANR objected to the depositions and filed a 

motion for a protective order with the Court on October 2, 2015. 

The Court held a hearing on the motions on October 19, 2015. At the hearing, the Court 

denied both motions, but it ordered ANR to file a more detailed pre-trial memorandum that 

specified ANR’s case-in-chief witnesses, what each witness would testify to, and whether the 

witness would testify as an expert. 

After this hearing, ANR and the Town reached an “informal agreement” that allowed for 

deposition of five of ANR’s witnesses. Depositions for the five witnesses took place on 

December 7–10, 2015. Roughly one month later, on January 21, 2016, the parties stipulated to 

dismissal with prejudice.

Respondents now seek to recover the cost of the five depositions under V.R.C.P. 54(d). 

Specifically, Respondent Bruce Pion seeks to recover $504.10 for the cost of deposition 

transcripts, and the Town seeks to recover $1,605.10 in deposition costs and $5,204.49 in fees 

its consulting expert charged for reviewing the depositions and preparing rebuttal testimony.

Under V.R.C.P. 54(d), “[c]osts other than attorneys’ fees shall be allowed as of course to 

the prevailing party, as provided by the statute and by these rules, unless the court otherwise 

specifically directs. Costs shall be taxed against the State of Vermont only to the extent 

permitted by law.” With regard to depositions, Rule 54(g) specifically provides, “The taxing of 

costs in the taking of depositions shall be subject to the discretion of the court. No costs shall 

be allowed unless the court finds the taking of the deposition was reasonably necessary . . . .”

ANR argues that, as a matter of law, the Court cannot award costs in this appeal 

because: (1) ANR is protected from cost awards under the doctrine of sovereign immunity; (2) 

Respondents are not “the prevailing party,” given that the parties stipulated to dismissal; and 

(3) the depositions were not reasonably necessary in this case. 

In the alternative, ANR argues that the Court should exercise its discretion under Rule 

54(g) and deny Respondents’ request because ANR had a prima facie case for the alleged 

violations, but it decided to dismiss the case when the Town explained several mitigating 

factors surrounding its decision to replace the failed culvert. ANR argues that it would be poor 

policy to punish ANR with a costs award for exercising its enforcement discretion in 

Respondents’ favor. 
We agree with ANR’s discretionary arguments, and therefore need not reach ANR’s 

claims that, as a matter of law, we are prevented from awarding costs to Respondents. 

Discovery is expensive and time-consuming for parties involved in litigation. ANR incurred the 

expense of conducting the depositions Respondents’ requested, and the Court does not 

perceive any reason for shifting Respondents’ discovery costs to ANR as well. According to 

ANR’s account of the parties’ stipulated dismissal, ANR decided to dismiss the case once 

Respondents approached ANR and discussed mitigating circumstances surrounding the culvert 

replacement. 

According to Respondents’ version of events, ANR only agreed to dismiss the 

enforcement action following depositions. If this is so, then discovery has done its job—the 

Parties avoided the cost of a multi-day trial and potentially significant penalty at comparatively 

little expense. 

In short, Respondents sought depositions, by their own account, those depositions 

saved the parties considerable time and money by avoiding trial. The Court sees no reason to 

shift Respondents’ costs to ANR. 

For the foregoing reasons, the Town of Lowell and Bruce Pion’s motion for costs is 

DENIED.

So ordered.

Electronically signed on July 5, 2016 at 1:15 PM pursuant to V.R.E.F. 7(d).

_________________________________________

Thomas G. Walsh, Judge

Superior Court, Environmental Division

Notifications:

Randy Joe Miller (ERN 7037), Attorney for Petitioner Agency of Natural Resources

Ronald A. Shems (ERN 5032), Attorney for Respondent Town of Lowell

Jennifer B. Colin (ERN 4393), Attorney for Respondent Bruce Pion

Richard H. Saudek (ERN 4552), Attorney for party 2 Co-counsel

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