                                 STATE OF VERMONT
SUPERIOR COURT                                                ENVIRONMENTAL DIVISION
                                                                 Docket No. 57-5-15 Vtec

                           ANR v. Town of Lowell and Pion

                            ENTRY REGARDING MOTION

Count 1, ANR Enfc. Administrative Order (57-5-15 Vtec)

Title:        Motion for Costs (Motion 7)
Filer:        Bruce Pion
Attorney:     Jennifer B. Colin
Filed Date:   January 22, 2016

Response filed on 02/03/2016 by Attorney Randy Joe Miller for Petitioner Agency of Natural
Resources
      Opposition
Response filed on 02/10/2016 by Attorney Ronald A. Shems for Respondent Town of Lowell
      Reply
Response filed on 02/24/2016 by Attorney Randy Joe Miller for Petitioner Agency of Natural
Resources
      Reply

The motion is DENIED.

Count 1, ANR Enfc.Administrative Order (57-5-15 Vtec)

Title:        Motion for Costs (Motion 8)
Filer:        Town of Lowell
Attorney:     Ronald A. Shems
Filed Date:   January 25, 2016

Response filed on 02/03/2016 by Attorney Randy Joe Miller for Petitioner Agency of Natural
Resources
      Opposition
Response filed on 02/10/2016 by Attorney Ronald A. Shems for Respondent Town of Lowell
      Reply
Response filed on 02/24/2016 by Attorney Randy Joe Miller for Petitioner Agency of Natural
Resources
      Reply

The motion is DENIED.
        Pending before the Court are motions for costs filed by the Town of Lowell (Town) and
Bruce Pion, who are Respondents in this enforcement appeal. The underlying matter is an
appeal of an administrative order (AO) issued by the State of Vermont Agency of Natural
Resources (ANR) that cites Respondents for altering a watercourse without a permit and
causing a discharge into waters of the state without a permit, in violation of state law. See 10
V.S.A. §§ 1021(a), 1022; 10 V.S.A. § 1259(a). In the AO, ANR alleges that the Town contracted
with Mr. Pion to replace a failed thirty-inch-diameter culvert, which was intended to convey an
unnamed tributary under a Town road, with a five-foot-diameter culvert. Mr. Pion installed the
five-foot culvert some eighty feet down the road from the original culvert. Sometime
thereafter, the five-foot culvert failed, causing 35 feet of road to collapse and a substantial
amount of material to discharge into the tributary.
        ANR served its AO on Respondents on May 15, 2015. On September 18, 2015, the Town
filed a motion to dismiss, arguing that ANR’s pre-trial memorandum did not satisfy the
disclosure requirements of 4 V.S.A. § 1004(a). One week later, the Town served three of ANR’s
witnesses with notices of deposition duces tecum. ANR objected to the depositions and filed a
motion for a protective order with the Court on October 2, 2015.
        The Court held a hearing on the motions on October 19, 2015. At the hearing, the Court
denied both motions, but it ordered ANR to file a more detailed pre-trial memorandum that
specified ANR’s case-in-chief witnesses, what each witness would testify to, and whether the
witness would testify as an expert.
       After this hearing, ANR and the Town reached an “informal agreement” that allowed for
deposition of five of ANR’s witnesses. Depositions for the five witnesses took place on
December 7–10, 2015. Roughly one month later, on January 21, 2016, the parties stipulated to
dismissal with prejudice.
        Respondents now seek to recover the cost of the five depositions under V.R.C.P. 54(d).
Specifically, Respondent Bruce Pion seeks to recover $504.10 for the cost of deposition
transcripts, and the Town seeks to recover $1,605.10 in deposition costs and $5,204.49 in fees
its consulting expert charged for reviewing the depositions and preparing rebuttal testimony.
        Under V.R.C.P. 54(d), “[c]osts other than attorneys’ fees shall be allowed as of course to
the prevailing party, as provided by the statute and by these rules, unless the court otherwise
specifically directs. Costs shall be taxed against the State of Vermont only to the extent
permitted by law.” With regard to depositions, Rule 54(g) specifically provides, “The taxing of
costs in the taking of depositions shall be subject to the discretion of the court. No costs shall
be allowed unless the court finds the taking of the deposition was reasonably necessary . . . .”
        ANR argues that, as a matter of law, the Court cannot award costs in this appeal
because: (1) ANR is protected from cost awards under the doctrine of sovereign immunity; (2)
Respondents are not “the prevailing party,” given that the parties stipulated to dismissal; and
(3) the depositions were not reasonably necessary in this case.
        In the alternative, ANR argues that the Court should exercise its discretion under Rule
54(g) and deny Respondents’ request because ANR had a prima facie case for the alleged
violations, but it decided to dismiss the case when the Town explained several mitigating
factors surrounding its decision to replace the failed culvert. ANR argues that it would be poor
policy to punish ANR with a costs award for exercising its enforcement discretion in
Respondents’ favor.
       We agree with ANR’s discretionary arguments, and therefore need not reach ANR’s
claims that, as a matter of law, we are prevented from awarding costs to Respondents.
Discovery is expensive and time-consuming for parties involved in litigation. ANR incurred the
expense of conducting the depositions Respondents’ requested, and the Court does not
perceive any reason for shifting Respondents’ discovery costs to ANR as well. According to
ANR’s account of the parties’ stipulated dismissal, ANR decided to dismiss the case once
Respondents approached ANR and discussed mitigating circumstances surrounding the culvert
replacement.
         According to Respondents’ version of events, ANR only agreed to dismiss the
enforcement action following depositions. If this is so, then discovery has done its job—the
Parties avoided the cost of a multi-day trial and potentially significant penalty at comparatively
little expense.
        In short, Respondents sought depositions, by their own account, those depositions
saved the parties considerable time and money by avoiding trial. The Court sees no reason to
shift Respondents’ costs to ANR.
      For the foregoing reasons, the Town of Lowell and Bruce Pion’s motion for costs is
DENIED.



So ordered.

Electronically signed on July 5, 2016 at 1:15 PM pursuant to V.R.E.F. 7(d).



_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division


Notifications:
Randy Joe Miller (ERN 7037), Attorney for Petitioner Agency of Natural Resources
Ronald A. Shems (ERN 5032), Attorney for Respondent Town of Lowell
Jennifer B. Colin (ERN 4393), Attorney for Respondent Bruce Pion
Richard H. Saudek (ERN 4552), Attorney for party 2 Co-counsel

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