July 25, 2025 Update

By Andy Delaney 

Two opinions this past week. No clever tie-together today. One is about environmental law—cleaning up petroleum contamination specifically. The other is about criminal law, evidence, relevance, and the Constitution.   

We'll start with the murky, occasionally gasoline-scented puddles of the Petroleum Cleanup Fund (PCF). This story starts with a gas station, a crashed tractor, and a "punch list."

Petitioner owns a property that used to be a gas station. Years after the pumps were yoinked, soil tests revealed petroleum contamination left behind. The Agency of Natural Resources (ANR) demanded a cleanup, and the PCF was tapped for hundreds of thousands of dollars in reimbursements. Over a decade after the cleanup was ordered, a neighbor crashed a tractor into the building and wrecked it. So, more stuff to do. 

Like many remodeling jobs this one expanded (the tractor crash didn't help) and there was more work to do: concrete, electrical, septic system, and a "punch list" to get everything in shape.

Anywho, ANR covered some stuff but denied a whole bunch of petitioner's requests, including costs for a licensed engineer (as a general contractor) and other items—filled ruts, moving a flagpole, fixing the septic work that didn't go as planned, et cetera. ANR nixed reimbursements for most of it—claiming these weren’t directly about petroleum cleanup or were "capital improvements." The Environmental Division mostly sided with ANR, except for a few pre-approved, absolutely-must-pay items. 

Petitioner appeals. 

SCOV reverses and remands on grounds that there's not enough reasoning. Because neither the trial court nor ANR analyzed the individual items on the punch list or explained why things were "capital improvement" as opposed to necessary cleanup work, SCOV kicks it back to the trial court for further findings. In other words, ANR and the trial court need to say more than "because I said so" here. In re Cote, 2025 VT 42.

Next up we have a foray into evidence, constitutional rights, and child-witness confusion. The gist of this case is that it's really about order of operations—you don't get to a constitutional right of confrontation unless the cross-examination material meets the relevance test. 

Defendant was convicted of lewd or lascivious conduct with his six-year-old stepdaughter, L.F., based largely on statements the child made to her foster mom and during a children’s interview. He pointed to an earlier incident when L.F. (then four) described her biological dad as touching her genitals. That time, the State found no sexual purpose—just (the State thought) awkward toilet training. Defendant argued the old allegation showed either L.F. made false claims or was confused about her abusers’ identities.

The trial court didn't buy it. Under Vermont’s rape shield law, "prior sexual conduct" evidence can come in only if it's relevant—say, showing the witness made a prior false allegation. Defendant's problem was that there was no proof the old claim was untrue, and the record suggested L.F. always knew who was who. The court also pointed out that, sure, adults seemed confused about family roles, but L.F.—though mixed up about dates and details—never actually muddled her stepdad and her biological dad as perpetrators.

Defendant appeals. 

On appeal, defendant ditches his rape-shield arguments in favor of his constitutional right to put on a defense. But SCOV refuses to go there: until you hit the relevance threshold, the Sixth Amendment doesn't require introduction of such evidence. If the evidence doesn’t tend to make your actual defense more probable—an abuse-of-discretion decision—it stays out.

SCOV sees no reason to reverse and affirms. The trial court's determination that the evidence wasn't relevant stands. State v. LaGore, 2025 VT 41.