Environmental Court of Vermont 

State of Vermont 

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E N T R Y R E G A R D I N G M O T I O N 

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Champlain Marina Dock Expansion Docket No. 28-2-09 Vtec 

Project: Expansion of water-borne docks, to accommodate larger boats 

Applicant: Champlain Marina, Inc. 

 (Appeal from DEC determination on lake waters encroachment 

Title: Motion to Clarify participation of VNRC counsel (Filing No. 16) 

Filed: June 11, 2010 

Filed By: Cielo Marie Mendoza, Attorney for Agency of Natural Resources 

Response in Opposition filed on 06/11/10 by Appellants “Save the Bay” 

Response in Support filed on June 15, 2010 by Cross-Appellant CMI 

Reply filed on June 15, 2010 by ANR 

Sur-reply in Opposition filed on June 15, 2010 by Appellants “Save the Bay” 

___ Granted _X_ Denied ___ Other 

By its June 11, 2010 Motion to Clarify, the Vermont Agency of Natural 

Resources (“ANR”) requests that the Court clarify its ruling of May 19, 2010, 

in which we granted the Vermont Natural Resources Council (“VNRC”), as amicus

curiae, permission to cross examine witnesses in the upcoming merits trial. 

ANR contends the Court exceeded its authority in permitting VNRC to cross 

examine witnesses because participation by amicus curiae is necessarily limited 

to the submission of legal briefs. For the following reasons, we disagree. 

 The Vermont Rules of Appellate Procedure expressly authorize the 

participation of amicus curiae through the submission of legal briefs. 

V.R.A.P. 29. However, the rules also authorize amicus curiae to make oral 

argument before the Vermont Supreme Court. V.R.A.P. 34(i). In other words, 

amicus curiae are authorized to participate before an appellate court to the 

same extent as the principle parties. 

The Rules of Appellate Procedure are made applicable to the Environmental 

Court by V.R.E.C.P. 5(a)(2). In an appeal to the Environmental Court, however, 

parties are not limited to submitting briefs and making oral argument. As a 

trial court performing an appellate function, we review de novo the issues 

preserved on appeal, taking evidence and testimony as if no proceeding had 

previously occurred. In re Killington, Ltd., 159 Vt. 206, 214 (1992). It is 

inconsistent to allow amicus curiae to perform the same function as the 

principle parties at an appellate level, but to prohibit them from 

participating to the same extent as the principle parties before this Court. 

A court has “inherent authority to appoint or deny amicus curiae,” and 

“it is solely within the discretion of the Court to determine the ‘fact, 

extent, and manner of participation by the amicus.’” Jin v. Ministry of State 

Security, 557 F. Supp. 2d 131, 136 (D.D.C. 2008) (quoting Cobell v. Norton, 246 

F. Supp. 2d 59, 62 (D.D.C. 2003)). “A court can allow amici to call their own 

witnesses and cross examine the witnesses of other parties, but need not do 

so.” Russell v. Board of Plumbing Examiners, 74 F. Supp. 2d 349, 351 (S.D.N.Y. 
 Champlain Marina Dock Expansion, No. 28-2-09 Vtec (EO on partial SJ motion) 

Page 2 of 2. 

1999). We therefore conclude that we have the discretion to authorize VNRC to 

cross examine witnesses as amicus curiae in this appeal. In light of counsel’s 

representation that Appellant Neighbors (“Save the Bay”) and VNRC will avoid 

overlap in their trial participation, we conclude that VNRC’s participation 

will not be unduly burdensome and therefore should be allowed. 

This conclusion aligns with the Court’s ability to allow such 

participation by amicus curiae in Act 250 permit appeals. Title 10 V.S.A. 

§ 6085 allows the Court to permit amicus curiae to cross examine witness and 

otherwise participate in a pending appeal even though they are not a party. We 

see no compelling reason to allow such participation in an Act 250 appeal but 

not in an appeal of an ANR encroachment permit, particularly when VNRC has 

represented that it will undertake a limited role in these proceedings. 

VNRC has represented that it will not delay the proceedings and it will 

not call additional witnesses. Its role will be limited to cross-examining 

select witnesses in the stead of Appellant Save the Bay. As a result of these 

representations, no duplication will occur, and honoring these requests will 

ensure a complete, yet also summary and expedited proceedings. Accordingly, we 

DENY ANR’s motion to further clarify or limit VNRC’s participation in this 

proceedings. 

___________________________________________ ___June 16, 2010___ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 Stephen A. Reynes, Attorney for Appellants “Save the Bay”: Thomas and 

Margaret Battey, David R. Wood, Kenneth Brown, Marlene Williamson, Laurel 

Butler, Deborah Rabideau, Wes Weaver, Dennis Reichardt, Linda Jackman, 

Sam Jackman, Renae Hance, John P. Louchheim, John R. Louchheim, Lindsey 

Louchheim, Susan R. Louchheim, Stephen C. DePasquale, Jr., Kathryn J. 

DePasquale, Beverly I. Watson, Gordon A. Watson, Bruce Bouchard, Michelle 

Bouchard, Joseph H. Boyd, Ann Burzynski, Neil Metzner, Frank Shea, and 

Catherine Rush. 

 Craig Weatherly, Attorney for Cross Appellant Champlain Marina, Inc. 

 Cielo Marie Mendoza, Attorney for the Vermont Agency of Natural Resources 

 David K. Mears, Attorney for Petitioner to Intervene, VNRC 

 Jon Groveman, Esq., co-counsel for VNRC 

 John H. Hasen, Attorney for Vt. Natural Resources Board (FYI purposes only)