City of Montpelier v. Barnett

• Decision Date: 11 May 2012
• Docket Number: No. 11–067.,11–067.
• Citation: 49 A.3d 120,2012 VT 32
• Court: Vermont Supreme Court
• Parties: CITY OF MONTPELIER v. Richard BARNETT, Cedric Sanborn, Leslie Sanborn and Natural Resources Board.

49 A.3d 120
2012 VT 32

CITY OF MONTPELIER
v.
Richard BARNETT, Cedric Sanborn, Leslie Sanborn and Natural Resources Board.

No. 11–067.

Supreme Court of Vermont.

May 11, 2012.

[49 A.3d 123]

Glenn C. Howland of McKee, Giuliani & Cleveland, P.C., Montpelier, for Plaintiff–Appellee.

Oreste V. Valsangiacomo, Jr. of Valsangiacomo, Detora & McQuesten, Barre, for Defendants–Appellants.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

DOOLEY, J.

¶ 1. Defendants appeal from a judgment ruling that the City of Montpelier may prohibit boating, fishing, and swimming in Berlin Pond, a public body of water located outside the City and used as the City's drinking water supply. The City contends that the restrictions are supported by both a state health order and the powers granted to the City by the State. The trial court agreed and issued a permanent injunction preventing defendants from engaging in the listed recreational activities and from trespassing upon land surrounding the pond that is owned by the City. For the reasons set forth below, the judgment enjoining defendants from boating, fishing, and swimming in Berlin Pond is reversed.

¶ 2. Although we are sympathetic to the City's significant concern for regulating the source of its drinking water, the City's powers are limited to those conferred upon it by the State of Vermont. After careful examination of the state statutes and the City's charter, we are unable to find any direct or indirect authorization for the City to regulate recreational use of Berlin Pond. On the contrary, the State has developed its own regulatory schemes to govern both public water sources and recreational use of public waters. Under neither of these schemes has the State prohibited the recreational uses at issue here. Our opinion today does not hold that recreational use of Berlin Pond must be permitted. We conclude only that valid regulation would require action by the State—either by direct regulation or by delegating such power to the City—and this has not yet occurred.

¶ 3. Berlin Pond is a natural body of water, roughly two miles long and covering approximately 256 acres. There is little development surrounding the pond, although Interstate Highway 89 runs just to

[49 A.3d 124]

its east. Despite the fact that it lies in the Town of Berlin roughly three miles outside the City of Montpelier, Berlin Pond has supplied Montpelier with a gravity-fed water supply since 1884. The City's reliance on the pond for water dates back to the Village of Montpelier's purchase of the rights to take water from the pond, pursuant to authority granted in a charter amendment in 1872. See Lucia v. Vill. of Montpelier, 60 Vt. 537, 538, 543, 15 A. 321 (1888). Presently, the water from Berlin Pond reaches about nine thousand users, including most residents and businesses within the City—not to mention this Court.

¶ 4. The water from Berlin Pond passes through two processes before it reaches the user. Since 2000, the water is first filtered at a new filtration plant constructed by the City. The filtration process removes particulate matter from the water, eliminating most of its turbidity. After filtration, the microorganisms in the water are nullified through chlorine disinfection.

¶ 5. This suit arises because Montpelier has taken steps to protect its water source. Over the years, the City has acquired almost all the land surrounding the pond. The only exception is an eighty-five-foot access strip that is owned by the Town of Berlin. The City has placed “no trespassing” signs around Berlin Pond and has posted the land around it against hunting and fishing. The City has a general trespass ordinance that reads: “It shall be unlawful for any person to trespass upon or injure public buildings, squares, commons, cemeteries, fountains, statutes [sic] or any other public property or resources owned by or under the control of the City of Montpelier.” Montpelier, Vt., Code of Ordinances § 13–1 (enacted 1972). Additionally, the City has passed an ordinance aimed at protecting the water supply, which states:

No person shall throw, put or place, or cause to be thrown, put or placed, in any public reservoir, or stream connected therewith, or waters in the city, any stone, dirt, ashes, shavings, stocks, garbage, rubbish or filth of any kind, nor shall wade or bathe or fish in or cause or permit a dog or animal to go into or swim in the water, nor skate on the ice of a public reservoir.

Id. § 3–332 (enacted 1970). According to the City, human activity in and around the pond threatens an increase in trash and waste including petroleum products that cannot be removed through filtration; the introduction of invasive plant and animal species including zebra mussels, which are not currently in the pond and which can block water intakes; and an increase in turbidity because activity stirs up dirt and silt in the water. The City has few viable alternative water sources if Berlin Pond were to become contaminated. During the course of this litigation, the City added a further ordinance stating: “It shall be unlawful for any person to trespass, occupy, or enter upon the surface of Berlin Pond, or any tributary thereof, or the lands adjacent thereto owned by the City of Montpelier without the permission of the City Council ....” Id. § 13–3 (enacted 2010).

¶ 6. We reiterate some of the facts above because they are central to the outcome of this case. Berlin Pond does not lie within the City of Montpelier; Montpelier does not abut the pond. Montpelier does not “own” Berlin pond; it owns most of the land surrounding the pond and has a right to take water from the pond. As the following discussion explains, this is as much a legal statement as a factual statement, but it helps explain our decision.

¶ 7. Defendants Cedric and Leslie Sanborn own a local sporting goods store, and defendant Richard Barnett is employed at the store. Beginning in 2009, defendants

[49 A.3d 125]

began to explore the possibility of using the pond for recreational activities. It was then—and continues to be—their belief that the State of Vermont has exclusive jurisdiction to regulate use of Berlin Pond under the public trust doctrine. They further believe that the State has not prohibited recreational use of Berlin Pond.

¶ 8. This latter belief derives from certain actions by the Water Resources Panel and the Agency of Natural Resources (ANR). The Water Resources Panel, a component of the Natural Resources Board (NRB), is a public body responsible for adopting water quality standards and rules for the use of public waters, which ANR is then responsible for administering and applying. See 10 V.S.A. § 1258. The Panel has classified Berlin Pond as a class A(2) public water supply.¹ See id. § 1252; Vermont Natural Resources Board, Water Resources Panel, Vermont Water Quality Standards § 3–03. According to the Panel's description, this classification covers “[w]ater managed for public water supply purposes to achieve and maintain waters with a uniformly excellent character and a level of water quality that is compatible with the following designated uses,” among which are swimming, boating, and fishing. Vermont Water Quality Standards § 3–03(A)(3), (4). Rightly or wrongly, defendants interpreted this description to mean that the State permits recreational use. The Panel's rules for water use, established pursuant to 10 V.S.A. § 1424, further encourage this understanding because, as discussed specifically infra, they place restrictions on the use of Berlin Pond that do not include restrictions on swimming, fishing, or boating.

¶ 9. On September 6, 2009, Cedric and Leslie Sanborn ventured out on Berlin Pond in kayaks. The Montpelier Police Department arrested them and charged them with four counts: intentional violation of a state health order in violation of 18 V.S.A. §§ 122, 130; intentional interferences with a protected drinking water source in violation of 10 V.S.A. § 1682; violation of Montpelier's above-described ordinance against misusing a reservoir; and violation of Montpelier's ordinance prohibiting trespassing on city property or resources. The Washington County State's Attorney eventually dismissed these charges. A few months later, in March 2010, Barnett obtained a permit from the Department of Fish and Wildlife (DFW), a division of ANR, to hold an ice fishing derby on Berlin Pond, and he began circulating advertisements for the competition.

¶ 10. These events prompted the City of Montpelier to initiate the present action against the defendants seeking a declaratory judgment that boating, fishing, and bathing is prohibited and a preliminary and permanent injunction, civil fines, and reimbursement of litigation expenses. The Washington Superior Court, Civil Division, initially ordered that the State—specifically NRB—be joined as a necessary party, which the City did. On April 16, 2010, the court held an evidentiary hearing on the request for a preliminary injunction. At the hearing, the defendants offered testimony of two DFW wardens who explained that the State has jurisdiction to regulate fishing and has not prohibited it on Berlin Pond. The City countered with testimony from the director of the City's public works department explaining the capabilities and limitations of the water treatment

[49 A.3d 126]

system and testimony from a former municipal health officer describing the potential health impacts of recreational use.

¶ 11. Following the evidentiary hearing, the court granted the request for a preliminary injunction. At this time, the State, at its own request, was excused from the litigation, having taken a neutral position. At the hearing, the State had asserted that “[t]he state does not have a position on whether the City of Montpelier's restrictions are valid or not,” and in its limited court filings the State explained that “[v]iolation of state fish and wildlife laws and/or a state permit are not at issue in these matters” and...