                                       State of Vermont
                            Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Frostbite Mine                                          Docket No. 12-1-11 Vtec
(Appeal from Environmental Commission District Coordinator Jurisdictional Opinion)

Title: Motion to Strike/Clarify SOQ (Filing No. 1)
Filed: March 8, 2011
Filed By: Appellee Vermont Natural Resource Board/Land Use Panel
Response in opposition filed on 4/15/11 by Appellant Windsor Minerals, Inc.
Reply to response in opposition filed on 4/28/11 by Appellee NRB and Interested Person ANR
Sur-Reply in opposition filed on 5/3/11 by Appellant Windsor Minerals, Inc.


 ___ Granted                    ___ Denied                      X Other

                                            Background
        Windsor Mills, Inc. (“Appellant”) appeals a jurisdictional opinion issued by the District
2 Environmental Commission Coordinator (“the District Coordinator”), and has filed a
Statement of Questions (“SOQ”) outlining 31 questions for appeal. The District Coordinator
concluded that, despite the closure of the Frostbite Mine in Ludlow, Vermont, Act 250
jurisdiction remains attached to the mine based on alleged permit violations and unpermitted
material changes to the development prior to the mine closure. The Vermont Natural Resources
Board Land Use Panel (“NRB”) has now filed a motion to strike the “Historical and Current
Background” and “Definitions” sections of the SOQ as well as 29 of the 31 questions.
                        Historical Background and Definitions Sections
      NRB moves to strike the historical background and definition sections of Appellant’s
SOQ, arguing that such sections are inappropriate at the pleading stage.
        Any statement of questions filed with this Court operates much like a complaint in a
civil proceeding. In re Waitsfield Pub. Water Sys., No. 33-2-10 Vtec, slip op. at 8 (Vt. Super. Ct.
Envtl. Div. Nov. 2, 2010) (Durkin, J.); Reporter’s Notes, V.R.E.C.P. 5(f) (stating that the statement
of questions “functions like a pleading to limit the issues that are to be heard on the appeal”).
That is, one of its purposes is to give notice of the issues that will be raised on appeal. See Prive
v. Vt. Asbestos Grp., 2010 VT 2, ¶ 15, 187 Vt. 280 (“The key to whether a complaint is sufficient
is notice . . . .”); see also V.R.C.P. Rule 8(a) (stating that a complaint should contain “a short and
plain statement of the claim showing that the pleader is entitled to relief”); Reporter’s Notes,
V.R.C.P. Rule 8(a) (“[T]he rules do not require a specific and detailed statement of the facts . . .
but simply a statement clear enough ‘to give the defendant fair notice of what the plaintiff’s
claim is and the grounds on which it rests.’” (citing Conley v. Gibson, 355 U.S. 41, 47 (1957))). A
In re Frostbite Mine, No. 12-1-11 Vtec (Entry Order on NRB’s Motion to Strike) (11-03-2011)   Pg. 2 of 3.


statement of questions also serves to set the parameters of the appeal. See Appeal of Town of
Fairfax, No. 45-3-03 Vtec, slip op. at 4 (Vt. Envtl. Ct. June 13, 2005) (Wright, J.).
        Here, although the Court finds the Historical Background and Definitions sections
helpful, they are unnecessary to provide notice or define the scope of the appeal, as the
questions themselves serve that function. As such, the Historical Background and Definitions
sections are inappropriate additions to the SOQ. We therefore GRANT the NRB’s motion to
strike the Historical Background and Definitions sections and direct Appellant to file a revised
SOQ omitting those sections.
                                Proper Standard Under Act 250 Rule 34
       NRB contends that Appellant erroneously discusses a “substantial and material change”
standard in questions 2–4, 7, 9, 12–14, and 19, thus combining the standards from Act 250 Rule
34(A) (requiring a “material change” for “permitted” projects) and Rule 34(B) (requiring a
“substantial change” for “pre-existing” projects). According to NRB, Act 250 Rule 34(A)
controls, and therefore the proper standard for the Court to apply is whether there was a
“material change” to the permitted development. In its response, Appellant contends that this
case does not fit squarely within either Act 250 Rule 34(A) or Rule 34(B).
        Absent a determination that an appellant’s statement of questions raises issues beyond
the scope of this Court’s jurisdiction, we are unaware of the authority for this Court, or an
appellee for that matter, to direct that appellants use specific verbiage in their questions. We do
not regard NRB’s motion as a challenge to this Court’s jurisdiction to address legal issues raised
under Act 250 Rule 34(B). However, so that we may properly analyze this issue, the Court
directs Appellant to clarify its response to this aspect of NRB’s motion. Specifically, Appellant
should address whether the project predates the adoption of Act 250, and, to the extent it does
not, how Act 250 Rule 34(B) is applicable to this appeal.
                           Conversion to Motions for Summary Judgment
       In the course of reviewing the parties’ pleadings, the Court has determined that NRB’s
motion to strike is essentially a motion to dismiss. However, because we must consider matters
outside the pleadings to resolve the issues presented, it is appropriate to convert NRB’s motion
to dismiss into a motion for summary judgment. See V.R.C.P. Rule 12(b)(6) (stating that the
Court must treat a motion to dismiss as a motion for summary judgment under Rule 56 when
“matters outside the pleading are presented to and not excluded by the court”).
        We note that the parties have already submitted substantial legal memoranda and
factual representations. However, we wish to give the parties the opportunity to submit any
additional supplemental legal memoranda or affidavits for the Court’s consideration. See
V.R.C.P. 12(b)(6) (directing that when a trial court converts a pending motion to one requesting
summary judgment, “all parties shall be given reasonable opportunity to present all material
made pertinent to such a motion by Rule 56”).
        Accordingly, NRB shall have until Friday, November 25, 2011 to submit any additional
material in support of its pending motion. Appellant and ANR shall have until Friday,
December 9, 2011 to submit additional responses to NRB’s filings. If the parties do not wish to
file supplemental material, they should promptly inform the Court so that the Court may
proceed to make a final determination on the pending motion.
In re Frostbite Mine, No. 12-1-11 Vtec (Entry Order on NRB’s Motion to Strike) (11-03-2011)             Pg. 3 of 3.


                                                 Conclusion
        Appellant is directed to submit a revised SOQ omitting the Historical Background and
Definitions sections by Monday, November 14, 2011. NRB shall have until Friday,
November 25, 2011 to submit any additional material in support of its pending motion.
Appellant and ANR shall have until Friday, December 9, 2011 to submit additional responses
to NRB’s filings. If the parties do not wish to file supplemental material, they should promptly
inform the Court so that the Court may proceed to make a final determination on the pending
motion.




_________________________________________                                           November 3, 2011           _
       Thomas S. Durkin, Judge                                                          Date
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Date copies sent to: ____________                                            Clerk's Initials _______
Copies sent to:
  George McNaughton, Attorney for Appellant Windsor Minerals, Inc.
  John H. Hasen, Attorney for Appellee Natural Resources Board/Land Use Panel
  Jon Groveman, Attorney for Interested Person Agency of Natural Resources
