Britting Wastewater/Water Supply Permit ( 2008 )


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  •                               STATE OF VERMONT
    ENVIRONMENTAL COURT
    }
    In re: Britting Wastewater/Water Supply Permit          }Docket No. 259-11-07 Vtec
    (Appeal of Dannenberg)                          }
    }
    Decision and Order on Motion to Alter or Amend
    Appellant Paul S. Dannenberg, Esq. appealed from a decision of the
    Department of Environmental Conservation of the Vermont Agency of Natural
    Resources granting Mr. Kenneth Britting, Jr. Wastewater System and Potable
    Water Supply permit number WW-4-2786. On April 7, 2008, the Court dismissed
    many of Mr. Dannenberg’s questions for lack of subject matter jurisdiction or
    legal foundation, and remanded the remaining questions to the Agency of
    Natural Resources so it could complete its administrative reconsideration
    process. In re: Britting Wastewater/Water Supply Permit, Docket No. 259-11-07
    Vtec, slip op. at 8 (Vt. Envtl. Ct. Apr. 7, 2008) (April 7 Decision). On April 21,
    2008, Mr. Dannenberg moved to alter or amend that judgment pursuant to Rule
    59(e) of the Rules of Civil Procedure.
    Mr. Dannenberg is an attorney who has appeared and represents himself;
    the Vermont Agency of Natural Resources (ANR) is represented by Aaron Adler,
    Esq; and the Water Resources Panel (WRP) of the Vermont Natural Resources
    Board is represented by Mark L. Lucas, Esq. Appellee-Applicant Kenneth
    Britting, Jr., has entered his appearance representing himself, but did not file any
    memoranda on the motions.
    Resolution of this motion is committed to the Court’s discretion. Rubin v.
    Sterling Enterprises, Inc., 
    164 Vt. 582
    , 588 (1996). A motion to alter or amend
    1
    judgment is an extraordinary remedy, and it should be used sparingly. In re:
    Bouldin Camp – Noble Road, Docket No. 278-11-06 Vtec, slip op. at 2 (Vt. Envtl.
    Ct. Sept. 13, 2007). Such a motion “may not be used to relitigate old matters, or
    to raise arguments or present evidence that could have been raised prior to the
    entry of judgment.” 11 Wright, Miller, & Kane, Federal Practice and Procedure:
    Civil 2d § 2810.1 (construing the analogous federal rule).      However, such a
    motion may be used to “correct manifest errors of law or fact” that the judgment
    is based upon, to allow the moving party to present newly discovered or
    previously unavailable evidence, to prevent manifest injustice, or to respond to
    an intervening change in the controlling law. Id.; accord In re: Boutin PRD
    Amendment, Docket No. 93-4-06 Vtec, slip op. at 1-2 (Vt. Envtl. Ct. May 18, 2007)
    (a motion for reconsideration may not be used to again raise already-rejected
    arguments, but may be used to address other alleged defects).
    Mr. Dannenberg has not offered new, previously unavailable evidence,
    has not pointed to a manifest injustice or an intervening change in the controlling
    law. Mr. Dannenberg now seeks to resurrect his claim for attorney’s fees by
    further explicating the “common benefit” theory. However, as explained in the
    April 7 decision, there is no statutory or common law basis for attorney’s fees in
    this Court, and they are not in any event available to a self-represented attorney.
    Mr. Dannenberg has also attempted to characterize the Court’s dismissal of
    Questions 2, 4 through 15, 18, 19, 21, and 23 as merely relying on the advisory
    nature of those questions; however, those questions were also dismissed because
    they asked property-law-related questions beyond this Court’s subject matter
    jurisdiction. The Motion to Alter or Amend is therefore DENIED.
    In addition, Mr. Dannenberg asks the Court to set deadlines for the
    Agency reconsideration process, arguing that, without court-ordered deadlines,
    the Agency “could sit on this matter indefinitely, stymieing [A]ppellant’s legal
    2
    rights.” Instead, after the Court’s April 7 decision was issued, the Agency states
    that the Division Director completed reconsideration of permit number WW-4-
    2786 and issued a decision on April 15, 2008, specifically addressing the issues
    remanded by the April 7 Decision. That determination of the Director of the
    Wastewater Management Division may be appealed to the Commissioner of
    Environmental Conservation within 30 days under ANR rules. 1 Mr. Dannenberg
    is entitled to a fair Agency reconsideration of this permit. Sec’y, Vt. Agency of
    Nat. Res. v. Upper Valley Regional Landfill Corp., 
    167 Vt. 228
    , 234 (1997). It
    would be premature and contrary to the presumption of Agency honesty and
    integrity, id. at 234, for the Court to impose any additional processing deadlines.
    Therefore, with respect to the request for additional reconsideration deadlines,
    the Motion to Alter or Amend is also DENIED.
    Accordingly, based on the foregoing, it is hereby ORDERED and
    ADJUDGED that Mr. Dannenberg’s Motion to Alter or Amend is DENIED, again
    concluding this appeal.           Any appeal after the internal ANR reconsideration
    process is complete would be a new appeal and would receive a new docket
    number at such time.
    Done at Berlin, Vermont, this 9th day of May, 2008.
    _______________________________________________
    Merideth Wright
    Environmental Judge
    1
    Administrative reconsideration of permitting decisions under the Wastewater System and Potable
    Water Supply Rules effective January 1, 2005 was governed by § 1-304. Under the rules effective
    September 29, 2007, administrative reconsideration is governed by § 1-401.
    3
    

Document Info

Docket Number: 259-11-07 Vtec

Filed Date: 5/9/2008

Precedential Status: Precedential

Modified Date: 4/24/2018