Friday, May 25, 2012

Surf’s Up



City of Montpelier v. Barnett, 2012 VT 32.

For 125 years, no one has been permitted to swim, boat, or even approach Berlin Pond.  As Montpelier’s water source, it has been verboten and off-limits to one and all.  In 2009, Defendants against all conventional wisdom began looking into promoting recreation on the pond.  They were arrested and cited by the Montpelier police for kayaking on the pond.  In response, one of the defendants drew up and began promoting an ice fishing derby on the Pond.  He even went and obtained permits from the Department of Fish and Wildlife and the Agency of Natural Resources. 

This was simply too much for the City of Montpelier.  No one swims in their water, and they were not going to stand for this persistent, quixotic protest against public health and decency. 

Then something went wrong.  The City, like that proverbial emperor, had no clothes, and now the swim club sign-up sheets have reappeared. 


Well, it is more complicated than that.  Let’s go through the background and then to the SCOV’s opinion.

Berlin Pond sits entirely within the Town of Berlin.  The City of Montpelier does not own Berlin Pond.  It owns most of the frontage around the pond (all but 85 prime feet of beach access controlled by the Town of Berlin), and it owns the right to draw water from the pond to slake the thirst of all those hard-working Montpelierites and state employees (not to mention a few legislators and jurists). 

Before it reaches those throats, the water from Berlin Pond is treated twice.  Once it is filtered to remove the creepy-crawlies, and then it is treated again with chlorine to kill anything that remains. 

Since 1970, the City has had no-trespassing ordinances on the books to prevent anyone from going into or dumping things into Berlin Pond and its tributaries.  The City has even ticketed, prosecuted, and convicted would-be Mark Spitzes and Thor Heyerdahls 

None of this matters to the SCOV because the real question here is does the City have the power to do what it has been doing.  The answer requires a few steps back from the situation and a remedial overview of municipal law.

When the colonists threw off the yoke of the British monarchy, they simultaneously made a grab for sovereignty. 

I realize this is bit like answering what time it is with a discursion into the mathematical origins of the concept.  Bear with me, it will pay off.

When the British left, the newly-minted Americans became the sovereigns, and the basic unit of organizing—the state (or commonwealth)—became the repository of this power.  Now some states have effectively given that power over in large chunks to the municipalities.  This is what is known as home rule. 

Vermont is not one of those states.  Power still resides in the state (which ironically enough meets in Montpelier).  We operate under what is known as Dillon’s Rule.  It means that unless the state gives a municipality a power, the municipality does not have it.  This is the great frustration of all municipal attorneys.  Responsibility outstrips authority. 

Whenever the SCOV or any other court is looking at a municipal ordinance or action, the first question is where does the city/town/village get the authority to do that?  Unless there is charter, statute, specific delegation from a state agency, or court ruling, then the likely answer is nowhere.  In such cases, towns should pack up the bags because they will not be doing that again.

The SCOV begins its analysis here by looking for Montpelier’s source of authority.  But before it starts, it also invokes a second concept known as the Public Trust Doctrine.  This states that all navigable waters are held in trust by the State for the general public for citizens of Vermont.  This is because such assets are held by the sovereign, and the state since 1783 has been the sovereign.  Now, the State may delegate this authority to municipalities, but the delegation must exist.

The important concept to keep in mind about the Public Trust Doctrine, apart from the fact that it is embedded within the Vermont Constitution, is that it comes with an obligation to keep the lands and waters open and to regulate in a narrow manner that honors this obligation.

The City accepts much of this framework, and it is ready with two sources of authority.  First, it cites to a 1926 public health order from the State’s Department of Health.  Second, it relies on the City’s charter, which has been reviewed and approved by the legislature.  The SCOV makes mincemeat out of both.

The 1926 Health Order starts out promising.  Beginning at the turn of the last century, the State Health Board with the blessing of the SCOV did prohibit individuals from swimming, boating, and otherwise mucking up Berlin Pond with their feet and diseases.  The 1926 health order is exactly what the City purports it to be: the definitive keep out.

The problem is age.  Some laws age like wine.  This one, however, turned to vinegar because as the SCOV notes while the order has never been repealed, all of the statutory structure that gave the State Health Department the power has. 

In fact, the 1926 health order was likely valid until 1989.  At that time, the Health Department’s water source protection laws were repealed, and in 1991 they were moved over to the Agency of Natural Resources, where they are today.  Because the repeal took away the Department’s Authority to make such orders and punish violations of such orders, the SCOV rules that the entire authority was wiped out, and the 1926 order was effectively nullified.  The SCOV notes that when a law is repealed it is in Carthaginian fashion deemed to never have existed.  No law, no order. 

The City argues that the 1926 order was essentially preserved, but the SCOV finds these arguments unconvincing.  There was no clear legislative intent to preserve the 1926 health order or any other water source protection orders from the Health Department.  ANR was essentially starting from scratch, and the City’s attempt to cull evidence to the contrary does not get much traction with the SCOV.

The City lobs one more argument down this line of reasoning by noting that both the ANR and the Natural Resources Board have included information about the City’s regulation of Berlin Pond in their various plans and summaries.  This is not enough for the SCOV.  Such summaries and statements only reflect the City’s understanding, and the State’s repetition of this information is just that and nothing more.

Most damning to the City’s case, though, is the fact that the City applied to the NRB in 2007 seeking to incorporate its regulations into the NRB’s plan for the pond.  This effort was abandoned when the NRB ruled that the City’s initial application was incomplete and inconsistent with the NRB’s role and charge.  To the SCOV this is proof that the ANR regime was not working in support or in conjunction with the City and that ANR likely did not have the 1926 health order in mind.

The City’s second major line of evidence starts out in a similarly promising manner, but it too falls prey to the same issues that thwarted the 1926 health order.

This time the City introduces its charter as evidence of its authority.  The problem is that there is not specific grant or reference to the City’s power to regulate use of the Pond.  Instead, the City looks backwards to a series of charters beginning in 1870 that gave the City (then a village) the authority to take, maintain, and protect the water from Berlin Pond.  Again, several versions of the charter appear to preserve these powers over time, until the City amended the charter in 1975 and voted to replace it with a revised version, which wiped clean mnay of the specific enumerated powers.

But the SCOV is not hasty.  It first looks to the current charter to see if the general language is sufficient.  The current charter empowers the City to “acquire, construct, and maintain such . . . reservoirs . . . as it may deem necessary for the benefit of the city.”  The SCOV is not impressed.  This power does not meet the specific grant required under Dillon’s Rule to grant the City the power. 

It is too generic.  It mirrors the general statutory language that every town enjoys.  It also does not exactly fit.  Berlin Pond is not Montpelier’s reservoir.  Montpelier does not own the pond or even control the exclusive right to tap the pond for water.  It is simply a right to take and little more.  The SCOV also notes that “maintain” hardly denotes regulation and does not imply the ability to control access.  If there be any doubt, the SCOV pulls out the Oxford English Dictionary to define the term “maintain,” which is the word geek’s equivalent of three snaps in a Z.

The SCOV finds that there is not even an implied power to regulate the Pond in any of this language because that power lies with the NRB and the State.  Since it is not essential to fulfilling the City’s charter obligations, the SCOV is unable to read an implied version into the City’s ambit. 

The SCOV also notes, and the City appears to concede that none of the charter language covers fishing, which the State has clearly and specifically reserved to itself.  It is a minor point, but given that one of the Defendants is charged with conducting a fishing derby, the result is another blow to the City’s position of control and authority. 

As a final Hail Mary on this argument, the City urges the SCOV to read the historical charter provisions into the current version because the City never intended to appeal those provisions.  Nothing doing, responds the SCOV.  Once a law is changed, it is changed.  The SCOV will assume that it was intended to be repealed.  Otherwise clear laws and straightforward provisions would be subject to constant scrutiny (“I know what it says now, but what did it say before?”).  It is a path the SCOV will not go down.

That leaves us with the last line of argument available to the City.  In the current charter there is language indicating that the previous powers of the Village have been transferred and saved to the City.    The City argues that this includes the City’s prior powers under the old bylaws.  But this is simply not enough.  The old language did not prohibit boating, appears to have empowered the City to conduct its own water board, does not prohibit trespassing on the pond, and acknowledges the City lack of control and ownership.

This leaves the City without a source of authority and renders it powerless to continue blocking individuals from swimming or boating in Berlin Pond.

The SCOV ends the decision with two final notes.  First, it rules that the trespass order was not challenged by the Defendants.  Therefore, the trespass order on land owned by the City of Montpelier around the lake remains in place.  You can go swimming, but there are only a few locations where you can get in without stepping on the City’s property (don’t bother going to City Hall for a map). 

Second, the SCOV notes that it has made a mess of things.  The beauty of the trial court’s injunction was that it kept the peace.  The SCOV’s decision has tipped the cart over.  This is what the law requires, but the law in this case ain’t pretty.  Don’t worry, though, suggests the SCOV, this is only a transition.  The instructions are clear.  City pick up the mess and do it right.

In addition to these notes, there are two underlying themes that run like subterranean river beneath the SCOV’s opinion.  These are worth noting as they will likely play a large role in the process and any return trips to the court. 

It seems evident to the SCOV that many of the no-swimming provisions are no longer needed and that the City’s current filtration and chlorination program would allow people to swim in the water without contamination.  The SCOV never comes right out and says as much, but there is a strong sense that the SCOV thinks, at least in part, that the City has not made its health threat case or shown why these strong steps are necessary for protecting public health.

The second theme is the sense that the NRB has taken over this work and the City’s concern is an antiquated power grab.  Certainly, the shift from public health to natural resources indicates confidence from the legislature that water supplies are better managed as conservation projects rather than medical protectorates.  The NRB’s generous allowance for recreational use in water supplies supports this as well. 

The State’s continuing neutrality in this case and its stubborn unwillingness to participate also informs this position.  Again, the SCOV does not explicitly say it, but the implication is clear: if this is so important, why isn’t the State worried or involved?  It is a question that haunts the analysis and likely sunk the City’s position more than anything else.

All this is to say that the City may not be facing merely a crisis of authority.  This case may be the City’s Dr. Strangelove moment where they are forced to stop fearing and start to embrace the idea of swimmers in the water supply.  The SCOV certainly looked askew at the City’s claims, and it is unlikely to give the City more slack next time. 

At the very least, it is certainly something the City needs to look at as they try and push off from this decision at the risk being borne back ceaselessly into the past.

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