In re Hinsdale Farm, 2004 VT 72 (VT 8/13/2003), No. 2002-566.

• Docket Nº: No. 2002-566.
• Citation: 2004 VT 72
• Case Date: August 13, 2003
• Court: United States State Supreme Court of Vermont

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2004 VT 72 In re Hinsdale Farm No. 2002-566. Supreme Court of Vermont August 13, 2003

On Appeal from Water Resources Board, David J. Blythe, Chair.

Ronald A. Shems and John B. Kassel of Shems Dunkiel & Kassel PLLC, Burlington, for Appellants.

Liam L. Murphy and Abby C. Moskovitz of Langrock, Sperry & Wool, LLP, Burlington, for Appellee.

PRESENT: Amestoy, C.J., Johnson, Skoglund and Reiber, JJ., and Gibson, J. (Ret.), Specially Assigned

SKOGLUND, J.

¶ 1. Appellants Citizens for Safe Farming, Inc., William J. and Bonnie F. Bly, Bethany and Shawn Bedard, and Steven and Jane Ann Kantor challenge a Water Resources Board (WRB) order dismissing their appeal. They appealed a Winooski Natural Resources Conservation District decision issuing an agricultural dam permit (Permit) to Hinsdale Farm to construct a dairy waste storage facility. The WRB dismissed the appeal for lack of jurisdiction. We affirm.

¶ 2. On August 19, 2002, the District issued Hinsdale an agricultural dam permit pursuant to its authority under the Vermont Dams Act, 10 V.S.A. § 1083a. Citing 10 V.S.A. § 1099, appellants appealed the district's decision to the WRB. In their Notice of Appeal, appellants asserted that the Permit was issued in error because it did not serve the public good, adversely affected scenic and recreational values, adversely affected water uses, was hazardous to public health, would contaminate ground and surface waters, was inadequately designed, failed to provide public benefits, would diminish property values, and would be a public safety risk. Appellants also filed a Notice of Appeal in Chittenden Superior Court pursuant to V.R.C.P. 75. In their superior court complaint, appellants insisted that the WRB had jurisdiction over their appeal, and that the second appeal was only a protective measure.

¶ 3. WRB Chair David J. Blythe determined at the prehearing conference that whether the WRB had jurisdiction to hear the appeal was a threshold issue that needed to be briefed, argued, and decided before the WRB could turn to the merits. The WRB received briefing from the parties and convened on November 19, 2002 to hear oral argument on whether the WRB had jurisdiction over agricultural dam permit appeals. In December 2002, the WRB issued a decision dismissing the appeal for lack of jurisdiction.

¶ 4. The WRB relied on the plain language of the Vermont's Dams Act, focusing particularly on the fact that 10 V.S.A. § 1099, which governs appeals from dam permits, does not expressly provide the WRB with jurisdiction over appeals from district agricultural dam permit decisions. Section 1099's silence as to how district decisions are to be appealed, when combined with the well-settled Vermont law that the jurisdiction of administrative bodies is limited to that which has been expressly conferred by statute, persuaded the WRB that it lacked jurisdiction to hear this appeal.

¶ 5. We review the WRB's dismissal for lack of subject matter jurisdiction de novo. Jordan v. State, 166 Vt. 509, 511, 702 A.2d 58, 60 (1997). The issue presented in this appeal is whether the Dams Act gives the WRB jurisdiction over appeals of agricultural dam permits issued by natural resource conservation districts. This is a question of statutory interpretation. When interpreting a statute, our principal objective is to implement legislative intent. State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996). Where legislative intent can be ascertained on its face, the statute must be enforced according to its terms without resort to statutory construction. Derosia v. Book Press, Inc., 148 Vt. 217, 222, 531 A.2d 905, 908 (1987). Where there is ambiguity or uncertainty about legislative intent, we must consider the entire statute, including its subject matter, effects and consequences, as well as the reason for and spirit of the law. See Paquette v. Paquette, 146 Vt. 83, 86, 499 A.2d 23, 26 (1985). "[T]he legislative history and circumstances surrounding [a statute's] enactment, and the legislative policy it was designed to implement," can also be helpful in discerning legislative intent. Perry v. Med. Practice Bd., 169 Vt. 399, 406, 737 A.2d 900, 905 (1999).

¶ 6. Under the Vermont Dams Act, 10 V.S.A., Chapter 43, responsibility for issuing nearly all dam permits is divided between two entities. Permits for dams used to generate hydroelectric power are issued by the Public Service Board (PSB). 10 V.S.A. § 1081. With one exception, permits for all other types of dams are issued by the Agency of Natural Resources through the Department of Environmental Conservation (DEC). Id. That one exception is permits for agricultural dams, which are issued by natural resource conservation districts pursuant to 10 V.S.A. § 1083a.

¶ 7. Section 1085 of the Dams Act makes clear that different procedures apply to the review and approval of dam permit applications depending on which agency has jurisdiction. Before granting permits, DEC must hold a public information meeting "to hear comments on whether the proposed project serves the public good and provides adequately for the public safety," id. § 1085(1), while the PSB must hold a hearing on each application to make the same determination. Id. § 1085(2). In contrast, when the owners of an agricultural enterprise seek to construct or alter any permitted dam, pond, or impoundment on their property, they must apply for an agricultural dam permit from the local natural resource conservation district. The district then "review[s] and approve[s] the applications in the same manner as would the department." Id. § 1083a(a). When there is a change in use or ownership affecting use, jurisdiction over agricultural dam permits reverts to DEC. Id. § 1083a(c).

¶ 8. Appeals of dam permitting decisions are governed by 10 V.S.A. § 1099. Parties aggrieved by a PSB decision can appeal directly to the Vermont Supreme Court. Id. § 1099(b). Permitting decisions of DEC are appealable to the WRB. Id. § 1099(a). The Dams Act generally and § 1099 specifically are silent on the question of where appeals lie from decisions of the natural resource conservation districts.

¶ 9. After reviewing the entire statutory scheme and the relevant legislative history we find that, as currently written, the statutes do not provide the WRB with jurisdiction to hear appeals from agricultural dam permit decisions by the districts. We find support for our ruling in prior case law, relevant statutes and rules, and legislative history.

¶ 10. First, the WRB was correct when it stated that the jurisdiction of administrative bodies is limited. We have repeatedly affirmed that "[p]ublic administrative bodies have only such adjudicatory jurisdiction as is conferred on them by statute, with nothing presumed in favor of their jurisdiction." Gloss v. Delaware & Hudson R.R., 135 Vt. 419, 422, 378 A.2d 507, 509 (1977). "The Legislature has made it clear that administrative departments may exercise only those powers expressly conferred, and that authority cannot arise through implication." Subud of Woodstock, Inc. v. Town of Barnard, 169 Vt. 582, 583, 732 A.2d 749, 750 (1999) (mem.) (citing to 3...