Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2016-101

SEPTEMBER TERM, 2016

Agency of Natural Resources } APPEALED FROM:

}

} Superior Court, 

 v. } Environmental Division

}

Ken Davis d/b/a Davis Contracting Service } DOCKET NO. 20-2-14 Vtec

Trial Judge: Thomas G. Walsh

In the above-entitled cause, the Clerk will enter:

Kenneth Davis, doing business as Davis Contracting Service, appeals from the 

Environmental Division’s decision on remand, in which the court made additional findings 

regarding unlawful discharges into state waters resulting from Davis’s logging operations. We 

affirm.

The first appeal in this case followed a four-day evidentiary hearing after which the 

Environmental Division assessed administrative penalties against Davis based on his failure to 

follow Acceptable Management Practices (AMPs) and the resultant unlawful discharges into state 

waters. See 10 V.S.A. § 1259(a) (“No person shall discharge any waste, substance, or material 

into waters of the State . . . without first obtaining a permit . . . .”). As noted by the Environmental 

Division, because permits are not required for discharges caused by logging operations that are in 

compliance with AMPs, penalties may be assessed only if a failure to follow the AMPs results in 

an unpermitted discharge. Davis argued that Tropical Storm Irene, rather than his 2011 AMP 

violations, caused the discharges into state waters. A panel of this Court upheld the Environmental 

Division’s determination that Davis’s AMP violations from the spring of 2012 caused unlawful 

discharges into state waters, but reversed and remanded the matter for the Environmental Division 

to make additional findings as to whether the AMP violations from the late summer of 2011 caused 

or contributed to unlawful discharges into state waters. Agency of Nat. Res. v. Kenneth Davis, 

No. 2015-185, 2016 WL 182329 (Vt. Jan. 7, 2016) (unpub. mem.), 

https://www.vermontjudiciary.org/UPEO2011Present/eo15-185.pdf.

On remand, the Environmental Division found that: (1) Davis’s failure to install culverts 

at road crossings, an appropriate number of water bars or dips along skid trails, and hay bales at 

outlets of water bars entering streams “resulted in the sediment discharge to the surface waters and 

the headwaters of the Trout River” in the late summer of 2011; and (2) during this period, Davis 

used sandy backfill susceptible to erosion around culverts that eroded into state waters. 

Accordingly, the Environmental Division concluded that Davis’s failure to comply with several

AMPs caused unlawful discharges into state waters in the late summer of 2011.

On appeal, Davis repeats his argument that the State failed to prove that the discharges into 

state waters were caused by his noncompliance with AMPs rather than Tropical Storm Irene. In 

support of this argument, Davis notes that a forester visiting his logging site in early August 2011 
2

before Tropical Storm Irene struck did not observe any discharges into state waters and did not 

issue any notice of AMP violations. Furthermore, he argues that it was not until ten days after 

Tropical Storm Irene struck that another forester observed sediment discharging into state waters

at the logging site.

We conclude that the Environmental Division’s decision on remand established the 

requisite causal link between Davis’s AMP noncompliance and discharges into state waters in the 

late summer of 2011. We remanded the matter for further findings because, with respect to the 

2011 violations, the Environmental Division’s analysis suggested that the existence of an AMP 

violation, coupled with an unpermitted discharge, was sufficient to support the imposition of 

penalties without establishing a causal link between the violation and the discharge. On remand, 

as indicated above, the Environmental Division explained how the various AMP violations caused 

discharges into state waters. 

Insofar as Davis argues that the court’s findings and conclusions are not supported by 

evidence, we cannot review this claim because he has only ordered a partial transcript. V.R.A.P. 

10(b)(1). Even considering only the portions of the transcript Davis has ordered, we conclude that 

the trial court’s findings are supported by substantial evidence. As the Environmental Division 

found, the first forester visiting the site prior to Tropical Storm Irene observed some AMP 

noncompliance issues, but did not observe any related discharges into state waters. The fact that 

the forester did not observe any discharges in mid-August 2011, two and one-half weeks before 

Tropical Storm Irene struck near the end of the month, does not demonstrate that Davis’s AMP 

violations played no part in causing discharges into state waters. The forester testified that at the 

time of her mid-August visit Davis had harvested only about one-third of the trees scheduled for 

logging, and further that the late August complaint that led to the second forester visiting the 

logging site on September 7, 2011 was filed a few days before Tropical Storm Irene struck and 

included photographs depicting discharges into state waters.

We recognize that Tropical Strom Irene was an extreme weather event and that weather 

conditions have an impact as to whether AMP violations result in discharges. But the fact that 

Tropical Storm Irene may have contributed, even significantly, to discharges into state waters does 

not undermine the Environmental Division’s conclusion that Davis’s failure to follow the AMPs 

caused discharges into state waters.

Affirmed.

BY THE COURT:

_______________________________________

Paul L. Reiber, Chief Justice

_______________________________________

John A. Dooley, Associate Justice

_______________________________________

Beth Robinson, Associate Justice