                                   STATE OF VERMONT
SUPERIOR COURT                                                   ENVIRONMENTAL DIVISION
                                                                    Docket No. 22-2-16 Vtec

                                        ANR v Branon

                                ENTRY REGARDING MOTION

Title:         Motion to Take Depositions (Motion 1)
Filer:         Paul and Mary Branon
Attorney:      Charles D. Hickey
Filed Date:    April 29, 2016

Response in Opposition filed on 05/09/2016 by Attorney Evan P. Meenan for Petitioner Agency
of Natural Resources
Reply filed on 05/12/2016 by Attorney Charles D. Hickey for Respondents Paul & Mary Branon
Sur-response in Opposition filed on May 13, 2016 by Attorney Meenan for ANR.

The motion is GRANTED IN PART and DENIED IN PART.

       Respondents Paul and Mary Branon seek the Court’s permission to depose three Agency
of Natural Resources (“ANR”) officials—Environmental Enforcement Officer Reginald Smith,
Watershed Management Division officer Steve Hanna, and Section 401 certification officer
Kevin Burke—as well as ANR staff attorney John Zaikowski, who now serves as Chief of the
Agency’s Compliance and Enforcement Division. For the reasons detailed below, we GRANT
Respondents permission to depose Messrs. Smith, Hanna, and Burke, but DENY permission to
depose Attorney Zaikowski.
       ANR seeks enforcement of its December 8, 2015, Administrative Order served upon
Respondents. ANR alleges that in 2012, Mr. Branon constructed a retaining wall on the
property both Respondents own along the shores of Lake Memphremagog below (lakeward) of
the mean water level, prior to applying for or receiving an ANR lake encroachment permit.
Such permits are often referred to as 403 certifications.
       It appears from the recent pleadings that there are several disputed issues that may
prove material to the evidence that the Court could receive at trial, including the location of the
Lake’s mean water level at Respondent’s property, whether Mr. Smith accurately identified that
mean water level in a discussion with Respondents, whether Mr. Hanna processed
Respondents’ after-the-fact 403 certification application in a reasonable manner, and what
contributed to the two year period of time from when Mr. Smith visited Respondents’ property
ANR v. Branon, No. 22-2-16 Vtec (Entry order on Motion to Take Depositions)          Page 2 of 3.


and when ANR issued its Administrative Order. Respondents also raise concerns about the
timing of ANR’s processing of their separate but perhaps related application for a 401
certification.
        Further complicating Respondent’s ability to defend against ANR’s Administrative Order
is that in the intervening time, Mr. Branon represents that he has suffered medical conditions
that will frustrate his ability to testify at trial.
        Our Rules of procedure and the applicable provisions of the statutes governing
environmental law enforcements provide for expedited discovery and trials concerning ANR
enforcement actions. See V.R.E.C.P. 4(d)(4) and 4 V.S.A § 1004. In this case, ANR represents
that it has provided all required disclosures of evidence, including a list of witnesses and a
summary of their testimony and other evidence; based upon these disclosures, ANR asserts
that depositions of its officers is not “necessary” and should not be allowed, per 4 V.S.A.
§ 1004(b)(“no other discovery . . . shall be permitted except that which is necessary for a full
and fair determination of the proceeding.”).
        ANR further asserts that Respondents will be afforded an opportunity to listen to the
testimony from ANR’s witnesses at trial and will be afforded an opportunity to cross examine
those witnesses, thereby making their pre-trial depositions “unnecessary.” We disagree. ANR
appears to ignore the importance, particularly in a contested proceeding, of Respondents need
and right to depose these material witnesses, to hear in their own words prior to trial of their
recollections and representations as to the disputed material facts. In addition to the charges
leveled by ANR against the Respondents, these witnesses are likely to provide disclosures
during depositions as to facts that may be relevant to mitigating factors that Respondents have
already raised, including the two-year time period that elapsed between ANR’s investigation
and the issuance of its Administrative Order. We find unconvincing ANR’s assertion that no
“delay” should be considered, since its Order is not barred by the applicable statute of
limitations.
       For these reasons, we conclude that Respondents’ deposing of these three ANR
witnesses is “necessary” and therefore GRANT Respondent’s motion to depose those
witnesses.
        We are unconvinced, however, that Respondent’s deposing of ANR’s lead prosecutor is
necessary or proper. ANR asserts certain privileges in regards to communications between
Attorney Zaikowski and the ANR officers. To the extent that ANR relies upon this asserted
privilege in directing its fact witnesses to refuse to respond to questions concerning the alleged
delay of its prosecution, then we shall consider at trial what limitations should be placed upon
ANR’s witnesses, in their efforts to explain the reasonableness of the purported delay.
However, we cannot condone the examination of Attorney Zaikowski in these circumstances.
Respondents assert that certain discussions, including settlement discussions, were had
between their attorney and Attorney Zaikowski. We cannot condone an examination, or
presentation at trial, of testimony concerning failed settlement efforts.
      For all these reasons, we DENY Respondents’ request for permission to depose Attorney
Zaikowski.
ANR v. Branon, No. 22-2-16 Vtec (Entry order on Motion to Take Depositions)        Page 3 of 3.




So ordered.

Electronically signed on May 16, 2016 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).



________________________________
Thomas S. Durkin, Judge
Environmental Division

Notifications:
Evan P. Meenan (ERN 1632), Attorney for Petitioner Agency of Natural Resources
Charles D. Hickey (ERN 3831), Attorney for Respondents Paul and Mary Branon

dchamber
