                                      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 Questions 11, 16-18, & 26-28 (Filing No. 2)
Filed: March 30, 2011
Filed By: Interested Person Vermont Agency of Natural Resources
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

       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 review in this 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 closure. The Vermont Agency of
Natural Resources (“ANR”) has now filed a motion to strike seven of the 31 questions from
the SOQ.
        In an Entry Order we issued today addressing a motion to strike filed by the Vermont
Natural Resources Board Land Use Panel (“NRB”), we concluded that NRB’s motion to strike
was essentially a motion to dismiss and also concluded that we must treat the motion as one for
summary judgment under V.R.C.P. 12(b)(6). The same is true for ANR’s motion to strike.
ANR’s motion is the equivalent of a motion to dismiss individual questions. However, because
we must consider matters outside the pleadings to resolve the issues presented, it is appropriate
to convert ANR’s motion into one 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 legal memoranda or affidavits that they would like the Court to consider. 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”).
In re Frostbite Mine, No. 12-1-11 Vtec (Entry Order on ANR’s Motion to Strike) (11-03-2011)             Pg. 2 of 2.


        Accordingly, ANR shall have until Friday, November 25, 2011 to submit any additional
material in support of its pending motion. Appellant and NRB shall have until Friday,
December 9, 2011 to submit additional responses to ANR’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
  Jon Groveman, Attorney for Interested Person Agency of Natural Resources
