NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
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before this opinion goes to press.


                                          2018 VT 30

                                         No. 2017-187

Agency of Natural Resources                                    Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court,
                                                               Environmental Division
Francis Supeno, Barbara Supeno, and
Barbara Ernst                                                  January Term, 2018


Thomas G. Walsh, J.

Thomas J. Donovan, Jr., Attorney General, and Robert F. McDougall, Assistant Attorney
 General, Montpelier, for Petitioner-Appellee.

David Bond of Strouse & Bond, PLLC, Burlington, for Respondents-Appellants.


PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ.


        ¶ 1.   SKOGLUND, J.        Respondents, Francis Supeno, Barbara Supeno, and Barbara

Ernst, appeal an order of the Environmental Division imposing a penalty of $27,213 for water and

wastewater permit violations. On appeal, respondents argue that their due process rights were

violated, the penalty assessment was precluded by res judicata, and the amount of the penalty was

excessive. We affirm.

        ¶ 2.   The following facts are either not disputed or were found by the court. Respondents

Francis Supeno and Barbara Supeno are siblings and jointly own property in Addison at 306 Fisher

Point Road. Barbara Supeno and Barbara Ernst live adjacent to the property at 330 Fisher Point

Road. In October 2009, the Supeno siblings obtained a wastewater system and potable water
supply permit, which authorized the replacement of a seasonal cottage at 306 Fisher Point Road

with a year-round residence with one bedroom. The permit included the construction of an on-site

well and wastewater disposal system. The water supply for 330 Fisher Point Road is provided

through a public water system.

       ¶ 3.    In June 2014 the Agency of Natural Resources (ANR) received a complaint of an

alleged violation of the wastewater permit. ANR also became aware that the property was

advertised as a two-bedroom, two-bathroom rental. ANR sent an inquiry to respondents seeking

to conduct an inspection of the property, but respondents did not reply. An ANR enforcement

officer went to the property and Barbara Supeno denied ANR access to the house.                The

Environmental Division granted ANR’s petition for an access order and ANR received access on

September 9, 2014. During the visit, the ANR enforcement officer observed two water lines

entering the basement of 306 Fisher Point Road. Respondent Ernst explained that one line was

from the on-site well and the other was a spliced connection of the town water line from 330 Fisher

Point Road, and that the house could switch between the two water sources. The enforcement

officer also observed the permitted bedroom on the second floor and an additional nonpermitted

bedroom in the basement.

       ¶ 4.    On September 18, 2014, ANR filed an emergency administrative order (EAO) and

the court granted the petition the same day. The EAO listed three violations: (1) respondents failed

to obtain a permit before modifying the rental home at 306 Fisher Point Road to add a second

bedroom; (2) respondents spliced into the public water supply line serving 330 Fisher Point Road

and connected it to the rental property on 306 Fisher Point Road without obtaining a permit; and

(3) respondents created an unapproved cross-connection at the rental property, which allowed it to

switch between the well water and the public water system and created a risk that potentially

polluted water could contaminate the public water supply. The EAO stated that the Secretary of


                                                 2
ANR “reserve[d] the right to subsequently issue Administrative Orders, including penalties.” The

EAO also notified respondents of their right to request a prompt hearing on the merits of the order.

       ¶ 5.    Respondents requested a hearing, which the Environmental Division held in

September 2014. Respondents were represented at the hearing by counsel. In October 2014, the

court modified the EAO to allow respondents to seek a permit from ANR to connect the building

at 306 Fisher Point Road to the public water supply, but the violations remained unchanged.

Respondents did not appeal the EAO.

       ¶ 6.    In June 2015, ANR issued an Administrative Order (AO) for the same violations

contained in the EAO and assessed a $29,325 penalty against respondents. Respondents requested

a hearing on the penalty assessment in the AO before the Environmental Division.

       ¶ 7.    The parties filed cross motions for summary judgment. Respondents alleged that

penalties could not be assessed in the AO for three reasons: (1) the AO violated their due process

rights because they were not informed of the possibility of such a high penalty being assessed;

(2) the AO was barred by res judicata because it involved the same parties and issues as the EAO;

and (3) the penalty violated the Eighth Amendment to the U.S. Constitution. ANR moved for

summary judgment on the penalty assessment. The court concluded that respondents had received

full process and res judicata did not apply and therefore denied respondents’ motion for summary

judgment. The court further concluded that review of the penalty assessment involved disputed

facts and denied summary judgment to both parties on this issue. Following an evidentiary

hearing, the court made findings relevant to the penalty assessment, which are discussed more

fully below, and set the total penalty for the violations at $27,213. Respondents filed this appeal.

       ¶ 8.    On appeal, respondents argue that assessing a penalty in the AO after the violations

were established in the EAO was a denial of due process and barred by res judicata. They also

contend that the penalty assessed by the court was excessive and in error.


                                                 3
                                            I. Due Process

          ¶ 9.    Respondents first contend that assessment of a penalty in the context of the AO

violates their right to procedural due process. Due process requires that a party be provided with

notice “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections.’ ” Town of

Randolph v. Estate of White, 166 Vt. 280, 283, 693 A.2d 694, 696 (1997) (quoting Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

          ¶ 10.   Respondents allege that they were not properly noticed that a penalty might be

assessed after conclusion of the EAO. To satisfy due process, an agency, prior to assessing a

penalty, must inform the parties of “(1) the factual basis for the deprivation, (2) the action to be

taken against them, and (3) the procedures available to challenge the action.” Id. at 284, 693 A.2d

at 696.

          ¶ 11.   Here, respondents received full and proper notice of the proceedings that led to the

penalty on appeal. The initial EAO provided all of the required elements of notice. It set forth the

facts supporting the violations and cited the statutory basis for the violations. The EAO explained

what action would be taken in response to the violations.            The EAO specifically notified

respondents that the Secretary of ANR “reserve[d] the right to subsequently issue Administrative

Orders, including penalties.” Finally, the EAO set forth respondents’ right to a hearing on the

merits of the order and instructions on how to pursue that avenue. Indeed, respondents availed

themselves of the process accorded and requested a hearing before the Environmental Division.

After the hearing, respondents were provided with a modified EAO that again specifically advised

that penalties could be sought at a later time in a proceeding for an AO. The AO similarly provided

the required notice to respondents.




                                                   4
       ¶ 12.   Respondents argue that ANR’s action of seeking a penalty in the AO amounted to

the imposition of an undisclosed remedy, which violates due process. Prue v. Royer, 2013 VT 12,

¶ 53, 193 Vt. 267, 67 A.3d 895 (explaining that “relief cannot be granted if the party against which

it is granted was prevented from raising appropriate defenses or submitting evidence because it

did not know that that remedy was being considered”). Given that respondents were fully noticed

in the EAO proceeding that penalties could be assessed later, there is no merit to respondents’

argument that deferring consideration of penalties to the AO deprived respondents of an

opportunity to challenge the factual findings underlying the penalty. Respondents chose not to

appeal the EAO having been fully noticed that these violations could form the basis for penalties

in a subsequent AO proceeding. Because respondents were provided with appropriate notice, they

were not denied due process.

                                       II. Claim Preclusion

       ¶ 13.   Respondents next argue that the AO is barred by res judicata, also known as claim

preclusion. “Under the doctrine of claim preclusion, a final judgment in previous litigation bars

subsequent litigation if the parties, subject matter, and cause(s) of action in both matters are the

same or substantially identical.” Faulkner v. Caledonia Cty. Fair Ass’n, 2004 VT 123, ¶ 8, 178

Vt. 51, 869 A.2d 103. Respondents contend that having obtained a final judgment in the EAO

proceeding, ANR could not then seek penalties in an AO because the AO involved the same

parties, subject matter, and claims as those that were raised or might have been raised in the EAO.

       ¶ 14.   The Environmental Division concluded that claim preclusion did not apply because

the EAO was not a final judgment as to the penalty. The court relied on the following language in

the EAO that expressly reserved ANR’s right to seek penalties in a subsequent AO proceeding:

“The Secretary retains the right to subsequently issue Administrative Orders, including penalties,

pursuant to 10 V.S.A. § 8008 with respect to violations described therein.” The court further


                                                 5
concluded that not applying res judicata was consistent with the language of the applicable statutes,

ANR’s interpretation of those statutes, and the policy behind the statutes.

       ¶ 15.   On appeal, we review de novo the question of whether claim preclusion applies to

a given set of facts. Faulkner, 2004 VT 123, ¶ 5. Here, there is no dispute that the EAO and AO

involved the same parties, subject matter, and causes of action insofar as both proceedings

concerned ANR and respondents and involved the same factual violations. Further, although

penalties were not sought in the context of the EO, they could have been. 10 V.S.A. § 8010(a)

(allowing assessment of administrative penalty in context of administrative order or emergency

administrative order); see Lamb v. Geovjian, 165 Vt. 375, 380, 683 A.2d 731, 734 (1996)

(explaining that issue preclusion bars both claims that were actually litigated and claims “that were

or should have been raised in previous litigation” (quotation omitted)).

       ¶ 16.   Claim preclusion may be enforced, however, only when “there exists a final

judgment in former litigation.” In re Tariff Filing of Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 20,

769 A.2d 668, 673 (2001) (quotation omitted). Once there is a final judgment, “the claim

extinguished includes all rights of the plaintiff to remedies against the defendant with respect to

all or any part of the transaction.” Restatement (Second) of Judgments § 24(1) (1982). The

Restatement of Judgments states that a claim is not extinguished and a second action can be

maintained if “[t]he court in the first action has expressly reserved the plaintiff’s right to maintain

the second action.” Id. § 26(1)(b). This exception to claim preclusion has been adopted by courts

in other jurisdictions. See D & K Props. Crystal Lake v. Mut. Life Ins. Co. of N.Y., 112 F.3d 257,

260 (7th Cir. 1997) (“Under a generally accepted exception to the res judicata doctrine, a litigant’s

claims are not precluded if the court in an earlier action expressly reserves the litigant’s right to

bring those claims in a later action.” (quotation omitted)); Toro Co. v. White Consol. Indus., Inc.,

920 F. Supp. 1008, 1013 (D. Minn. 1996) (“In a consent judgment, a party may expressly reserve


                                                  6
the right to re-litigate some or all of the issues that would have otherwise been barred between the

same parties.”); see also 18 C. Wright et al., Federal Practice and Procedure § 4413 (3d ed.) (“A

judgment that expressly leaves open the opportunity to bring a second action on specified parts of

the claim or cause of action that was advanced in the first action should be effective to forestall

preclusion.”).

       ¶ 17.     This Court has not previously explicitly adopted this exception to claim preclusion

although some prior decisions have alluded to it. In Carmichael v. Adirondack Bottled Gas Corp.

of Vermont, 161 Vt. 200, 207, 635 A.2d 1211, 1216 (1993), this Court recognized and applied a

similar exception to claim preclusion set forth in the Restatement § 26—that claim preclusion does

not apply if the defendant acquiesced in splitting the claims. See Restatement (Second) of

Judgments § 26(1)(a) (providing that claim is not extinguished if “[t]he parties have agreed in

terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein”).

In Faulkner, 2004 VT 123, ¶ 16 n.5, this Court approvingly cited the Restatement for the

proposition that reserved claims are not barred by claim preclusion although the Court concluded

there had been no such reservation in that case.

       ¶ 18.     In determining whether to adopt this exception, we consider the purposes of claim

preclusion: “(1) to conserve the resources of courts and litigants by protecting them against

piecemeal or repetitive litigation; (2) to prevent vexatious litigation; (3) to promote the finality of

judgments and encourage reliance on judicial decisions; and (4) to decrease the chances of

inconsistent adjudication.” Tariff Filing, 172 Vt. at 20, 769 A.2d at 673. Providing an exception

to claim preclusion for issues that have been reserved by the court is consistent with these purposes.

Judicial resources are conserved by allowing the court to decide important, potentially more time-

sensitive, issues while reserving other claims for later adjudication. Finality and reliance are

preserved insofar as all parties are on notice as to which claims have been extinguished and which


                                                   7
remain open for subsequent litigation. Moreover, the exception does not open the door to

vexatious litigation or inconsistent outcomes.        Therefore, we adopt an exception to claim

preclusion for circumstances in which the court reserves the plaintiff’s right to maintain a second

action on a particular issue.1

       ¶ 19.   The EAO in this case sufficiently reserved the issue of penalties to preclude

application of claim preclusion. The EAO explicitly reserved ANR’s right to seek penalties in a

subsequent AO proceeding. Therefore, claim preclusion did not bar ANR from seeking penalties

as part of an AO proceeding.

       ¶ 20.   In support of their argument, respondents cite Harmon Industries, Inc. v. Browner,

19 F. Supp. 2d 988 (W.D. Mo. 1998), in which the court held that the Environmental Protection

Agency (EPA) was barred from imposing a monetary penalty in a separate proceeding after the

property owner had entered a consent decree with the state environmental agency for the same

violation. Id. at 998. In that case, the consent decree specifically provided that it resolved all

claims and constituted full satisfaction and there was no reservation to later adjudication of

penalties by the EPA. Id. at 992. The fact that the EAO expressly reserved ANR’s right to seek

penalties in a subsequent AO proceeding distinguishes this case from Harmon.

       ¶ 21.   Respondents also contend that the reservation was ineffective because the

authorizing statute does not allow ANR to seek penalties in an AO proceeding after not including

a penalty in the EAO. The statute states that a “penalty may be included in an administrative

order . . . or in an emergency administrative order.” 10 V.S.A. § 8010(a) (emphasis added). In

construing this statute, “our primary objective is to effectuate the intent of the Legislature” and we




       1
         We need not decide how explicit the reservation must be because the reservation in this
case was specific and clear.

                                                  8
do so first by examining the plain language. C&S Wholesale Grocers, Inc. v. Dep’t of Taxes, 2016

VT 77A, ¶ 13, 203 Vt. 183, 155 A.3d 169.

        ¶ 22.   The statute’s use of “or” indicates a legislative intent to allow inclusion of the

penalty in either proceeding. The statute does not specifically require ANR to choose one

proceeding over the other and is silent on the question of whether ANR can initiate penalties in an

AO after choosing not to assess penalties in an EAO.

        ¶ 23.   “[W]here a statute is silent or ambiguous regarding a particular matter this Court

will defer to agency interpretation of a statute within its area of expertise as long as it represents a

permissible construction of the statute.” In re Hinsdale Farm, 2004 VT 72, ¶ 19, 177 Vt. 115, 858

A.2d 249 (quotation omitted). ANR’s interpretation that an EAO can reserve the issue of penalties

to an AO is reasonable. The EAO process in general is on an abbreviated timeline because the

process is meant to address activities that might present an immediate concern for public health or

the environment. Under the statute, an EAO may be sought when there is a threat to public health

or the environment or there is ongoing action that will likely lead to such a threat, or when activity

is occurring without a permit. 10 V.S.A. § 8009(a)(1)-(3). ANR’s construction of the statute is

permissible and it acted within the bounds of the statute by choosing to assess penalties in the AO

rather than in the initial EAO.

                                             III. Penalty

        ¶ 24.   Finally, respondents argue that the penalty assessed by the court was excessive and

an abuse of discretion. ANR initially imposed a penalty of $29,325, and after respondents

requested a hearing before the Environmental Division, the court “review[ed] and determine[d]

anew the amount of [the] penalty.” 10 V.S.A. § 8012(b)(4). The amount of an administrative

penalty is determined by considering several statutory factors. 10 V.S.A. § 8010(b) (listing

factors). These include the degree of actual or potential impact, the presence of mitigating


                                                   9
circumstances, respondent’s knowledge of the violation, respondent’s record of compliance, the

deterrent effect, the costs of enforcement, and the duration of the violation. Id. “The imposition

of civil penalties represents a discretionary ruling that will not be reversed if there is any reasonable

basis for the ruling.” Agency of Nat. Res. v. Persons, 2013 VT 46, ¶ 20, 194 Vt. 87, 75 A.3d 582

(quotation omitted).

        ¶ 25.   The Environmental Division conducted an evidentiary hearing and made specific

findings related to the penalty assessment. The court adopted ANR’s practice of treating multiple

violations of the same permit or related violations as one violation and calculated one overall

penalty for respondents’ three violations. The court used the system configured by ANR to

determine an appropriate penalty. Under that scheme, a violation is first identified as Class I to

IV, with Class I being the most severe, depending on several factors, including the harm caused,

the severity of the violation, and whether the action was initiated without a permit. Each class has

a monetary penalty range. The statutory factors are then given a number between “0” and “3” and

those combined numbers are multiplied by the maximum penalty for that class to arrive at a base

penalty. The penalty can be decreased for mitigating factors and increased to provide a deterrent.

In addition, ANR may recoup economic benefit gained by the violator and the cost of enforcement.

        ¶ 26.   Here, the court determined that these violations were Class II because they involved

construction initiated before issuance of a permit. The court then considered the various statutory

factors. The court found there was a moderate potential2 for an adverse impact on health or the


        2
          As to the violations for adding a second bedroom and using the home as a rental property,
the court found that there was a risk that the increased load on the wastewater treatment system
would cause it to fail and could result in human exposure to contaminates or contamination of soil
and groundwater. As to the violation for splicing the water supply, the court acknowledged that
there was conflicting evidence. The court credited the testimony of ANR that although the cross
connection was temporarily disconnected, it could have been reconnected. The court noted,
however, that if there was just a cross connection violation it would assign a value of “0” to the
degree of impact. On appeal, respondents assert that the court committed error in finding that the
water supply could be switched back and forth from the well to the public supply. Respondents

                                                   10
environment and assigned that factor a “1.” The court determined that respondents knew or should

have known that their actions required a permit and assigned this factor a “2.” Because the

evidence showed that respondents had no record of noncompliance, the court gave this factor a

“0.” As to the length of the violation, the court found that the cross connection was in place from

at least October 2009 to November 2011 and the increased load on the wastewater was in existence

from July 2010 to September 2014 without a permit and assigned this factor a “3.” The court

looked at mitigating factors, which the statute identifies as “including unreasonable delay” by

ANR and determined that no mitigation was warranted insofar as ANR acted promptly and any

delay was caused by respondents’ decision to require ANR to obtain a court order prior to gaining

access to the property. The court increased the penalty by $9000 as a deterrent, finding that

respondents were not cooperative with ANR and that the violations had existed for a long time.

The court calculated the cost of enforcement as $6213. The court found that respondents’

economic benefit could not be accurately calculated and did not increase the penalty on this basis.

The court set the overall penalty at $27,213.

       ¶ 27.   Respondents argue that the court clearly erred by including an increase for a

deterrent because respondents did not cooperate with ANR initially and denied ANR access to the

property at the time of the original site visit. Respondents contend that they should not be punished

for asserting their constitutional rights to require a warrant before entry onto their property. We

conclude that there was no error. The Environmental Division has discretion to determine how to

apply each of the factors and “how any mitigating circumstances found should affect the amount

of the penalty imposed as long as its assessment is not unreasonable.” Agency of Nat. Res. v.



assert that the facts demonstrate that the evidence does not support this finding and that there was
no threat to the public water supply. Even if the finding is not supported, there was no prejudice
to respondents because the court explicitly stated that its assessment of the degree of impact was
derived from the violation related to the increased load on the wastewater treatment system.

                                                 11
Godnick, 162 Vt. 588, 597, 652 A.2d 988, 994 (1994). The court here did not penalize respondents

for exercising their constitutional rights. The court determined that a larger penalty was necessary

to deter future violations because respondents had not cooperated with ANR and had allowed the

violations to exist for an extended duration even though they knew or should have known of the

violations. Moreover, even excluding respondent’s refusal to allow ANR entry to the property,

the remaining facts provide a reasonable basis for the court’s decision. Persons, 2013 VT 46, ¶ 20

(“The imposition of civil penalties represents a discretionary ruling that will not be reversed if

there is any reasonable basis for the ruling.” (quotation omitted)). The court’s decision to assess

a deterrent penalty is reasonable in light of the facts that respondents did not answer ANR’s initial

inquiry, did not cooperate with ANR’s investigation, and allowed the violations to exist for a long

time without a permit.

       ¶ 28.   Respondents argue that the court erred in assessing the penalty against Barbara

Ernst because she is not an owner. We do not reach this issue because respondents have failed to

demonstrate how it was preserved for appeal. See Agency of Nat. Res. v. Deso, 2003 VT 36, ¶ 12,

175 Vt. 513, 824 A.2d 558 (mem.) (“Since this claim was not raised before the environmental

court, it is not preserved for our review.”). The violations were filed against all three respondents

and at no time did they object to the inclusion of Barbara Ernst in the case or ask that she be

removed as a respondent. Having failed to raise this below, the issue is not preserved for appeal.

       ¶ 29.   Respondents make several other claims regarding the court’s findings supporting

the penalty assessment. They argue that the court failed to consider certain evidence demonstrating

that the violations had no potential to cause harm, that the court erred in finding that respondents

knew or should have known of the violations, and that the court erred in determining the length of

the cross-connection violation. “The trial court determines the credibility of witnesses and weighs

the persuasive effect of evidence, and we will not disturb its findings unless, taking them in the


                                                 12
light most favorable to the prevailing party, they are clearly erroneous.” In re JLD Properties of

St. Albans, LLC, 2011 VT 87, ¶ 17, 190 Vt. 259, 30 A.3d 641 (quotation omitted). Although

respondents view the evidence differently, the court based its findings on evidence in the record

and provided a reasonable basis for its penalty assessment.

       Affirmed.

                                              FOR THE COURT:



                                              Associate Justice




                                               13
