                                 State of Vermont
                      Superior Court—Environmental Division

======================================================================
                 ENTRY REGARDING MOTION
======================================================================

Vermont Agency of Natural Resources v. Earle              Docket No. 145-10-11 Vtec
(ANR Enforcement Administrative Order)

Title: Motion Concerning Hearing Request
Filed: November 10, 2011
Filed By: Raymond Earle, Pro Se
Response in Opposition received from ANR during motion hearing on Dec. 5, 2011.

 ___ Granted                   X Denied                        ___ Other

        Mr. Earle has requested that the Court consider as timely filed his request for
hearing he alleges that he mailed, requesting that this Court review an Administrative
Order (“the AO”) issued against him by the Vermont Agency of Natural Resources
(“ANR”). ANR served Mr. Earle with the AO on September 26, 2011 and filed the AO
with this Court on October 3, 2011. The AO alleges that Mr. Earl failed to follow
acceptable management practices and that his management practices resulted in
discharges of materials to waters of the State at multiple project sites, resulting in a
violation of 10 V.S.A. § 1259(a). The AO cites multiple violations resulting from Mr.
Earle’s logging operations at five different sites.
       Requests for hearings in administrative environmental law enforcement actions
are governed by 10 V.S.A. § 8012. In an effort to expedite judicial review of
environmental enforcement cases, the Vermont Legislature included relatively
restrictive hearing request deadlines under 10 V.S.A. § 8012(c). One such deadline is
that notice of a respondent’s request for hearing must be filed within 15 days of the
receipt of an administrative order. 10 V.S.A. § 8012(c). Both the statutory provision
and the AO served on Mr. Earle require that he file his request for hearing within 15
days and that it be filed “with the environmental division [of the superior court] and
the [ANR] secretary.” 10 V.S.A. § 8012(a). Since Mr. Earle was served with the AO on
September 26, 2011, he was required to file his request for a hearing with the ANR
Secretary and this Court by October 11, 2011.
       In an affidavit filed with the Court, Mr. Earle claims to have sent a letter
requesting a hearing to the ANR offices in Waterbury on October 2, 2011. He asserts
to having sent the request to ANR, using an address at “Cottage Street” in Waterbury.
However, there is no Cottage Street in the Town of Waterbury; the AO directed Mr.
Earle to send his request for hearing to the ANR offices at 103 South Main Street/Old
Cannery in Waterbury. ANR asserts it has no record of receiving a letter from Mr.
Earle. At the Dec. 5, 2011 hearing on this motion, Mr. Earle informed the Court that
the letter he attempted to send to the ANR at “Cottage Street” was returned to him as
undeliverable.
ANR v. Earle, No. 145-10-11 Vtec (EO on motion concerning hearing request) (12-7-11)                Pg. 2 of 2.


       Mr. Earle made no representations about any further efforts to file his hearing
request with ANR or this Court. Mr. Earle made no other attempt to reach ANR or this
Court until he received our October 17, 2011 Order making the AO a final judgment.
The Court thereafter received a letter from Mr. Earle on October 20, 2011, where Mr.
Earle first made the representation that he had filed a request for hearing. After this
Court requested more specific evidence from Mr. Earle that he had filed a timely
hearing request, we received his affidavit on October 26, 2011.
       Our jurisdiction in appeal proceedings is limited to those maters where a timely
appeal has been filed; where a timely appeal has not been filed, this Court has no
jurisdiction to consider the appeal. In re Ashline, 2003 VT 30, ¶ 8, 175 Vt. 203
(“Failure to file a timely appeal . . . deprives the environmental court of jurisdiction . . .
.”). While the current proceeding concerns our original jurisdiction over an ANR
environmental enforcement action, we find the Ashline precedent analogous: when Mr.
Earle failed to file a timely notice of hearing, he deprived this Court of the jurisdiction
to review the AO anew under the applicable provisions of 10 V.S.A. § 8012.
       After conducting a hearing on the pending motion, we conclude that Mr. Earle
did not file a request for a hearing on the AO, either with this Court or ANR, before the
expiration of the statutory deadline. Therefore, we DENY Mr. Earle’s request that he
be granted a hearing to contest the conclusion and penalty provisions of the AO. We
further conclude that our Order of October 17, 2011 remains in effect. Specifically,
the AO issued against Mr. Earle is a final Judicial Order pursuant to 10 V.S.A.
§ 8008(d)(2).




________________________________________                                         December 7, 2011___
       Thomas S. Durkin, Judge                                                        Date
=============================================================================
Date copies sent to: ____________                                                      Clerk's Initials _______
Copies sent to:
  Raymond Earle, Pro Se
  John Zaikowski, Esq., Attorney for the Vermont Agency of Natural Resources
