RE: Residents for Northeast Kingdom Preservation, LTD, Petition for Reclassification of Wetlands, Docket # WET-98-03 (May 13, 1999)

State of Vermont

WATER RESOURCES BOARD

In re: Petition for Reclassification of Wetlands

Residents for Northeast Kingdom Preservation, LTD

Docket No. WET-98-03 (Three wetlands, Sheffield, VT)

DISMISSAL ORDER

As explained below, the Water Resources Board ("Board") dismisses the above-captioned wetland reclassification petition on the basis that the organization that filed the petition has not demonstrated that it qualifies as a proper petitioner pursuant to Section 7.1 of the Vermont Wetland Rules ("VWR").

I. PROCEDURAL BACKGROUND

On April 6, 1999, the Board held oral argument to consider whether the above-captioned matter should be dismissed, based on arguments by Barre Granite Quarry, Ltd. ("BGQ") and Elizabeth and James LeCours ("LeCours") that Residents for Northeast Kingdom Preservation ("RNKP") had failed to demonstrate that it was a proper petitioner and therefore the Board lacks jurisdiction to consider RNKP's wetland reclassification request. On April 13, 1999, the Board issued a Memorandum of Decision denying BGQ's pending Motion to Dismiss but directed RNKP to file certain specified documents by April 21, 1999, to enable the Board to make a final determination whether that organization is an organization "in interest with fifteen or more members," thereby qualifying as a proper petitioner under Section 7.1, VWR.

Item 2 of the order stated:

2. RNKP is an organization because it has been demonstrated that it is a corporation. However, in order to confirm that RNKP is an organization "in interest with 15 or more members," RNKP must file with the Board, BGQ, the LeCours, and the ANR on or before Wednesday, April 21, 1999, the following:

(a) documentation verifying what requirements, as of the date of the filing of the Petition, it had for a person to qualify as a member of its organization;

(b) a list containing the names and addresses of at least fifteen bonafide members as of the date of the filing of the Petition; and

(c) a copy of its Articles of Association.

Memorandum of Decision at 9 (April 13, 1999).

On April 21, 1999, RNKP Board Member, Barbara K. Bristol, filed with the Board a letter stating that RNKP has no requirements for membership. On April 22, 1999, Cathy O'Brien, representative for RNKP, filed with the Board a cover letter and the following docu-ments: "Affadavit [sic] of Carl Benson;" a document entitled "Partial Membership (3/19/99);" Articles of Incorporation for RNKP; a letter of resignation from Stephen H. Amos to the Board of RNKP, dated September 20, 1998; a letter of resignation from Tony Sessions to the Board of RNKP, dated September 21, 1998; and Bylaws of RNKP adopted September 22, 1998. The cover letter was dated April 19, 1999, and the postmark on the envelope containing Ms. O'Brien's filing was April 20, 1999.

On April 28, 1999, BGQ and the LeCours each filed responses to RNKP's filings.

The LeCours specifically objected to RNKP's filing of April 22, 1999, on the basis that it was untimely and also based on the alleged substantive inadequacies of RNKP's submissions. On April 28, 1999, BGQ filed its Responsive Memorandum, in which it noted that RNKP had filed after the April 21 deadline. However, BGQ did not specifically object to the Board's considera-tion of this filing on the basis that it was untimely, but instead objected to RNKP's submissions because of their alleged substantive inadequacies.

On May 4, 1999, Ms. O'Brien filed a letter responding to the timeliness objection.

The Chair held a second prehearing conference in this proceeding on May 6, 1999. Participating by teleconference were representatives for RNKP and BGQ, and the LeCours, pro se. On May 7, 1999, the Chair issued a Second Prehearing Conference Report and Order memorializing his preliminary rulings on the timeliness of RNKP's filings and the relevancy of certain field survey information submitted by BGQ and the LeCours. The Chair also ordered that the filings made by RNKP, BGQ and LeCours in response to the Board's April 13, 1999, order should be referred to the Board for consideration at its May 11, 1999 meeting. The Chair indicated that the Board would make a final determination at this meeting, without further opportunity for oral argument, with respect to RNKP's qualifications as a petitioner and decide whether or not to dismiss the petition on its own motion. Second Prehearing Conference Report and Order at 4-5 (May 7, 1999).

On May 10, 1999, the Board received a letter and enclosures from Barbara K. Bristol for RNKP. For reasons explained below, the Board has determined that this submission was untimely and should not be considered in deciding this matter.

On May 11, 1999, the Board reviewed its Memorandum of Decision and deliberated with respect to the filings of April 21, 22, 28, and May 4, as well as prior filings made by RNKP, BGQ, and the LeCours in this proceeding. This decision memorializes the Board's decision.

II. ISSUE

Whether RNKP is an organization "in interest with fifteen or more members" and therefore qualifies as a proper petitioner pursuant to VWR, Section 7.1.

III. DISCUSSION

The Board concludes that RNKP does not qualify as a proper petitioner pursuant to VWR, Section 7.1. That rule provides, in relevant part, that the Board has authority to reclassify a wetland to a higher or lower classification:

... upon receipt of a petition from a state agency, a regional planning commission, a municipality, a municipal planning commission, a municipal conservation commission, an affected landowner, 15 or more persons in interest, an organization in interest with 15 or more members, or on its own motion....

(Emphasis added.) RNKP has not demonstrated that it is an organization "in interest" with the requisite number of bonafide members as of the date of the filing of its Petition on December 16, 1998.

A review of RNKP's filings of April 21 and 22, 1999, reveals the following deficiencies. First, RNKP does not have any requirements for membership, although its Bylaws, adopted September 22, 1998, contemplate the existence of a membership.⁽¹⁾ See Bylaws, Art. II.

Sec. 2; Art. III., Sec. 7; Art. IV., Sec. 1; Art. VI., Sec. 1.; see also, letter from RNKP Board member Barbara K. Bristol, filed April 21, 1999. Therefore, based on RNKP's filings, the organization had no requirements for membership at the time that RNKP filed its Petition.

RNKP's representative, nonetheless, filed with the Board two documents on April 22, 1999, purporting to support the existence of a membership. The first was a document signed by RNKP Board Member Carl Benson, purporting to be an affidavit, dated April 6, 1999, and alleging that RNKP "does contain 15 or more persons." As noted by the LeCours, this document was not notarized. However, even if one were to accept Mr. Benson's statement as true, it does not respond to the Board's directive that RNKP file "a list containing the names and addresses of at least fifteen bonafide members as of the date of the filing of the Petition." (Emphasis added.) It merely asserts that as of April 6, 1999, RNKP was composed of fifteen or more persons, not fifteen or more persons who were also members at the time of the filing of the Petition.

The second document filed by RNKP, consisting of a "Partial Membership List," provides the names and addresses of fifteen persons. However, this document, too, does not address the Board's directive. This document indicates that the persons listed were members as of March 19, 1999. Again, there was no indication that these persons were members of the organization as of the date of the filing of the Petition. Also, without any information indicating when these persons joined the membership roles, the Board is unable to independently determine whether RNKP had the requisite number of bonafide members.

Finally, RNKP filed with the Board a copy of its Articles of Association, dated September 14, 1998. RNKP was directed to provide this document in order to enable the Board to confirm that RNKP had satisfied the test for an organization "in interest." See Memorandum of Decision at 5 (April 13, 1999). A review of the Articles of Association reveals that the purpose of the organization is "Preservation of the Northeast Kingdom." There is no further explanation of the purpose of the organization to support the conclusion that RNKP is an organization dedicated to the protection of water quality or wildlife habitat or any other environmental value germane to wetlands protection, despite the representations contained in RNKP's Petition and subsequent filings. Indeed, RNKP's purpose statement could encompass preservation of historic and cultural landmarks or stabilization of the region's economy or any number of other purposes within the general rubric of "preservation" of the Northeast Kingdom. Since RNKP has provided the Board with no corroborating information demonstrating that it had an interest in environmental protection as of the date of the filing of the Petition, RNKP has failed to demonstrate that it is indeed an organization "in interest."

Following receipt of the Second Prehearing Conference Report and Order, Ms. Bristol submitted on May 10, 1999, a letter and several documents⁽²⁾ which she asked the Board to consider in response to the objections raised by BGQ and the LeCours to RNKP's prior filings. Ms. Bristol asserted that she and Ms. O'Brien were prepared to present at the second prehearing conference "background information on the organization in order to clear up the questions that had been raised" in filings made subsequent to RNKP's April 21 and 22, 1999, filings, but that RNKP was not given an an opportunity to present oral argument at that prehearing conference. Therefore, in lieu of oral argument, she asked the Board to consider her written statements and documentation. Bristol letter at 1-2 (May 10, 1999).

The Board concludes that Ms. Bristol's filing is untimely. RNKP was put on notice by BGQ's filing of March 8, 1999, that its "standing" as a petitioner was being challenged. RNKP has had two previous opportunities to supplement its filings with information demonstrating that it satisfied the test for qualification as an organization in interest with fifteen or more members as of the date of the filing of the Petition. Specifically, RNKP could have included Ms. Bristol's materials in its filings of March 22, 1999, prior to oral argument before the Board, or on April 21, 1999, in response to the Board's Memorandum of Decision of April 13, 1999. For whatever reason, RNKP's representative did not provide the Board with the information that Ms. Bristol now seeks to have the Board consider. RNKP has provided no compelling argument why the Board should now accept these documents, one day before scheduled deliberations in this matter and without due regard for the rights of other participants to this proceeding. Therefore, the Board will not consider the substance of these filings in reaching its decision on the merits of the present question.⁽³⁾

2. The documents enclosed with Ms. Bristol's May 10, 1999, letter were:

(1) an undated form purporting to be a membership form; (2) an undated document, entitled "Partial Membership List;" and (3) a copy of an RNKP newsletter (December 1998; issue #1).

3. Ms. Bristol also asserts that RNKP was not provided an opportunity for "oral argument" at the second prehearing conference. While it is true that the scope of this prehearing conference included consideration of argument with respect to the filings due on April 6, 21 and 28, 1999, this "argument" was to be confined to objections raised in filings made prior to the prehearing conference. As noted in the Second Prehearing Conference Report and Order, the Chair made an allowance for RNKP's responsive filing of May 4, 1999, expressly including this filing in the record of the proceeding even though no provision for a rebuttal filing was provided for in the Board's Memorandum of Decision (April 13, 1999). At no time, however, did either Ms. O'Brien, RNKP's representative, or Ms. Bristol ask to expand upon this filing by providing additional argument, even when the Chair specifically asked all prehearing conference participants whether there were other matters that they wished to have addressed. As is evident from the Second Prehearing Conference Report and Order, Ms. O'Brien had no reservation in asking the Chair to refer her letter of January 21, 1999, to the full Board for its considera-tion in deciding whether RNKP had satisfied the information request due on April 6, 1999, nor did Ms. O'Brien hesitate in asking the Chair about various procedural matters, including appeal rights. See Second Prehearing Conference Report and Order at 5 (May 7, 1999). Therefore, it cannot be said that RNKP was denied an opportunity for oral argument where it failed to timely bring to the Chair's attention a matter that it wished

to have considered.

4. The Chair also has suggested that this Petition should be dismissed because RNKP's representative failed to file a final sketch map delineating the subject wetlands and their proposed 50-foot buffer zones by April 6, 1999, in accordance with his Order of March 24, 1999. At the second prehearing conference on May 6, 1999, RNKP's repre-sentative asserted that the reason she did not file a final sketch map on April 6, 1999,

was because she believed that her filing of Exhibit 9 on January 21, 1999, adequately responded to the Chair's information request. Exhibit 9 was a small-scale topographical map showing in pencil and magic marker the approximate location of the three wetlands, but not their buffer zones.

The Board concludes that the exhibit submitted by RNKP's representative on January 21, 1999, does not comply with the Chair's March 24, 1999, Order. However, since neither BGQ nor the LeCours' filed a timely objection to RNKP's failure to file a final sketch map complying with the Chair's delineation request, the Board declines to dismiss RNKP's petition on this ground, but admonishes RNKP's representative. The failure of a petitioner to comply with a Chair or Board information request can result in the dismissal of a wetland reclassification petition. See In re: Petition for Reclassification of Scanlon Bog, Docket No. WET-91-01, Order (July 12, 1994). It is the duty of a representative, should she believe that an information request is unclear or, in the alternative, that she has previously satisfied the terms of that directive, to so communicate her position to the Board on or before, but not later than, the deadline for the requested filing.