Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-101

                                     SEPTEMBER TERM, 2016

 Agency of Natural Resources                           }    APPEALED FROM:
                                                       }
                                                       }    Superior Court,
    v.                                                 }    Environmental Division
                                                       }
 Ken Davis d/b/a Davis Contracting Service             }    DOCKET NO. 20-2-14 Vtec

                                                            Trial Judge: Thomas G. Walsh

                          In the above-entitled cause, the Clerk will enter:

        Kenneth Davis, doing business as Davis Contracting Service, appeals from the
Environmental Division’s decision on remand, in which the court made additional findings
regarding unlawful discharges into state waters resulting from Davis’s logging operations. We
affirm.

        The first appeal in this case followed a four-day evidentiary hearing after which the
Environmental Division assessed administrative penalties against Davis based on his failure to
follow Acceptable Management Practices (AMPs) and the resultant unlawful discharges into state
waters. See 10 V.S.A. § 1259(a) (“No person shall discharge any waste, substance, or material
into waters of the State . . . without first obtaining a permit . . . .”). As noted by the Environmental
Division, because permits are not required for discharges caused by logging operations that are in
compliance with AMPs, penalties may be assessed only if a failure to follow the AMPs results in
an unpermitted discharge. Davis argued that Tropical Storm Irene, rather than his 2011 AMP
violations, caused the discharges into state waters. A panel of this Court upheld the Environmental
Division’s determination that Davis’s AMP violations from the spring of 2012 caused unlawful
discharges into state waters, but reversed and remanded the matter for the Environmental Division
to make additional findings as to whether the AMP violations from the late summer of 2011 caused
or contributed to unlawful discharges into state waters. Agency of Nat. Res. v. Kenneth Davis,
No. 2015-185, 2016 WL 182329 (Vt. Jan. 7, 2016) (unpub. mem.),
https://www.vermontjudiciary.org/UPEO2011Present/eo15-185.pdf.

        On remand, the Environmental Division found that: (1) Davis’s failure to install culverts
at road crossings, an appropriate number of water bars or dips along skid trails, and hay bales at
outlets of water bars entering streams “resulted in the sediment discharge to the surface waters and
the headwaters of the Trout River” in the late summer of 2011; and (2) during this period, Davis
used sandy backfill susceptible to erosion around culverts that eroded into state waters.
Accordingly, the Environmental Division concluded that Davis’s failure to comply with several
AMPs caused unlawful discharges into state waters in the late summer of 2011.

       On appeal, Davis repeats his argument that the State failed to prove that the discharges into
state waters were caused by his noncompliance with AMPs rather than Tropical Storm Irene. In
support of this argument, Davis notes that a forester visiting his logging site in early August 2011
before Tropical Storm Irene struck did not observe any discharges into state waters and did not
issue any notice of AMP violations. Furthermore, he argues that it was not until ten days after
Tropical Storm Irene struck that another forester observed sediment discharging into state waters
at the logging site.

        We conclude that the Environmental Division’s decision on remand established the
requisite causal link between Davis’s AMP noncompliance and discharges into state waters in the
late summer of 2011. We remanded the matter for further findings because, with respect to the
2011 violations, the Environmental Division’s analysis suggested that the existence of an AMP
violation, coupled with an unpermitted discharge, was sufficient to support the imposition of
penalties without establishing a causal link between the violation and the discharge. On remand,
as indicated above, the Environmental Division explained how the various AMP violations caused
discharges into state waters.

        Insofar as Davis argues that the court’s findings and conclusions are not supported by
evidence, we cannot review this claim because he has only ordered a partial transcript. V.R.A.P.
10(b)(1). Even considering only the portions of the transcript Davis has ordered, we conclude that
the trial court’s findings are supported by substantial evidence. As the Environmental Division
found, the first forester visiting the site prior to Tropical Storm Irene observed some AMP
noncompliance issues, but did not observe any related discharges into state waters. The fact that
the forester did not observe any discharges in mid-August 2011, two and one-half weeks before
Tropical Storm Irene struck near the end of the month, does not demonstrate that Davis’s AMP
violations played no part in causing discharges into state waters. The forester testified that at the
time of her mid-August visit Davis had harvested only about one-third of the trees scheduled for
logging, and further that the late August complaint that led to the second forester visiting the
logging site on September 7, 2011 was filed a few days before Tropical Storm Irene struck and
included photographs depicting discharges into state waters.

       We recognize that Tropical Strom Irene was an extreme weather event and that weather
conditions have an impact as to whether AMP violations result in discharges. But the fact that
Tropical Storm Irene may have contributed, even significantly, to discharges into state waters does
not undermine the Environmental Division’s conclusion that Davis’s failure to follow the AMPs
caused discharges into state waters.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice




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