Environmental Court of Vermont State of Vermont

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Champlain Marina Dock Expansion Do cket No. 28-2-09 Vtec Project: Expansion of water-borne docks, to accommo date larger boats Applicant: Champlain Marina, Inc. (Appeal from DEC determination on lake wat ers encroachment Title: Motion to Clarify participation of VNRC coun sel (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 Appella nts “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 A ppellants “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 i ts ruling of May 19, 2010, in which we granted the Vermont Natural Resources C ouncil (“VNRC”), as amicus curiae , permission to cross examine witnesses in the upco ming merits trial. ANR contends the Court exceeded its authority in pe rmitting VNRC to cross examine witnesses because participation by amicus curiae is necessarily limited to the submission of legal briefs. For the followi ng 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 ami cus 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 applicabl e to the Environmental Court by V.R.E.C.P. 5(a)(2). In an appeal to the E nvironmental Court, however, parties are not limited to submitting briefs and ma king oral argument. As a trial court performing an appellate function, we re view 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 pro hibit them from participating to the same extent as the principle p arties 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 C obell v. Norton , 246 F. Supp. 2d 59, 62 (D.D.C. 2003)). “A court can al low 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 Vt ec (EO on partial SJ motion) Page 2 of 2.

1999). We therefore conclude that we have the disc retion 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 t hat 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 thou gh they are not a party. We see no compelling reason to allow such participatio n in an Act 250 appeal but not in an appeal of an ANR encroachment permit, par ticularly when VNRC has represented that it will undertake a limited role i n these proceedings. VNRC has represented that it will not delay the pro ceedings and it will not call additional witnesses. Its role will be li mited to cross-examining select witnesses in the stead of Appellant Save the Bay. As a result of these representations, no duplication will occur, and hon oring these requests will ensure a complete, yet also summary and expedited p roceedings. 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

=================================================== ============================ Date copies sent to: ____________ Cle rk's Initials _______ Copies sent to: Stephen A. Reynes, Attorney for Appellants “Sav e the Bay”: Thomas and Margaret Battey, David R. Wood, Kenneth Brown, Marl ene Williamson, Laurel Butler, Deborah Rabideau, Wes Weaver, Dennis Reicha rdt, Linda Jackman, Sam Jackman, Renae Hance, John P. Louchheim, John R . Louchheim, Lindsey Louchheim, Susan R. Louchheim, Stephen C. DePasqual e, Jr., Kathryn J. DePasquale, Beverly I. Watson, Gordon A. Watson, Br uce Bouchard, Michelle Bouchard, Joseph H. Boyd, Ann Burzynski, Neil Metzn er, Frank Shea, and Catherine Rush. Craig Weatherly, Attorney for Cross Appellant C hamplain Marina, Inc. Cielo Marie Mendoza, Attorney for the Vermont A gency of Natural Resources David K. Mears, Attorney for Petitioner to Inte rvene, VNRC Jon Groveman, Esq., co-counsel for VNRC John H. Hasen, Attorney for Vt. Natural Resourc es Board (FYI purposes only)