Thursday, August 19, 2010

Failed Procedural Challenge in Lamoille Valley Rail Trail Act 250 Case

In re: Lamoille Valley Rail Trail Act 250 Jurisdictional Opinion (Reconsidered) (Appeal of VTrans & VAST)
Docket No. 208-10-09
Decision and Order on Cross-Motions for Partial Summary Judgment
Judge Durkin

The Environmental Division recently granted partial summary judgment to a group of individuals in a case that will determine whether the planned Lamoille Valley Rail Trail will be subject to Act 250 jurisdiction. The Rail Trail is a planned recreational path and alternative transportation facility that would run along a 93-mile right-of-way between St. Johnsbury and Swanton, Vermont. As the Trail's name suggests, the right-of-way used to operate as a railroad line, but rail operations ceased in 1995. In 2006, the State of Vermont, through VTrans (the Vermont Agency of Transportation) entered into a long-term lease agreement with the Vermont Association of Snow Travelers (VAST) so that VAST would revitalize the right-of-way into the Lamoille Valley Rail Trail.

Early in 2006, two individuals requested an Act 250 Jurisdictional Opinion regarding the Rail Trail project from all three District Environmental Commissions in which the Rail Trail would be located. More than three years later, on June 1, 2009, the District Coordinators for all three districts concluded, in a joint Act 250 Jurisdictional Opinion, that the Rail Trail was exempt from Act 250 jurisdiction under the "repair and maintenance exemption." Following this decision, a group of individuals ("the Intervenors") filed a motion for reconsideration of the Jurisdictional Opinion with the three District Coordinators. On September 30, 2009, the District Coordinators issued their Reconsidered Jurisdictional Opinion and concluded that the Rail Trail was subject to Act 250 jurisdiction and would require a Land Use Permit. VAST and VTrans appealed this Reconsidered Jurisdictional Opinion to the Environmental Court.

On appeal, the Appellants raised a number of questions regarding the reconsidered jurisdictional opinion, and in this decision, the Environmental Court disposed of the first two questions, which both went to the procedural issues underlying the reconsideration process. The Appellants asked first whether the District Coordinators had the authority to reconsider their Jurisdictional Opinion, arguing that the motion for reconsideration was not properly filed and was therefore not timely, which deprived the District Coordinators and the Environmental Court of jurisdiction to consider the motion. The Appellants also argued that the Intervenors failed to comply with the Act 250 service rules, which was an alternative ground for finding that the Court did not have jurisdiction. The second question was whether the Intervenors had standing to make the reconsideration request, which, under Act 250 rules, is only provided to those individuals that have party status under the applicable Act 250 statutory provision. The Court granted summary judgment to the Intervenors on both of these questions, thus clearing the way for an examination of the substantive grounds for the Jurisdictional Opinion.

The Court's grounds for disposing of the bulk of the Appellants' arguments were that the Appellants were applying the wrong Act 250 rule to the situation in question. Specifically, the Appellants' arguments that the Intervenors had failed to properly file their motion, and that the Intervenors had failed to satisfy the service requirements for the reconsideration motion, were misplaced because the Appellants were relying on Act 250 Rule 12. The Court noted, however, that Rule 12 applies only to proceedings before the district environmental commissions whereas jurisdictional opinions are issued by district coordinators. Thus, the reconsideration motions were not subject to the Rule 12 requirements, and the Court could find no requirement in the applicable rules or statutes that the Intervenors failed to comply with.

Regarding the issue of party status, the Court agreed with the Appellants that the Act 250 rules required that any person seeking reconsideration of a jurisdictional opinion must qualify as a party under the applicable statutory criteria for party status under Act 250. However, based on the filing made in their motion for reconsideration, the Court concluded that the majority of the Intervenors had made "an adequate showing to the District Coordinators of what is required for party status under [Act 250]." Decision at 19. Consequently, the Court concluded that the Intervenors were entitled to seek reconsideration, and it granted summary judgment in favor of the Intervenors on this question.

The Court's order concluded by noting that the parties had agreed that the remainder of the Appellants' questions on appeal could likewise be decided on summary judgment--we can thus expect to see the Environmental Court's final decision on the jurisdictional question relatively soon. But it is likely that this is only the beginning of a very long and potentially contentious Act 250 process for the development of the Lamoille Valley Rail Trail.