Sec., ANR v. Camp, ORDER, (E94-031)


                             STATE OF VERMONT

                           JUDICIARY DEPARTMENT

                        ENVIRONMENTAL LAW DIVISION


Secretary,                   		     }
Vermont Agency of Natural Resources,         }
                                             }
         v.                                  }         Docket No. E94-031
                                             }
Suzanne A. Camp,                             }
 Respondent.                                 }


                                    ORDER

    Respondent has moved the Court to reconsider the December 27, 1994 Order
denying her motion to dismiss these proceedings.  Respondent is represented
by Duncan F. Kilmartin, Esq.;  the Secretary is represented by Salvatore P.
Spinosa, Esq., pro hac vice. Respondent's motion raises important
constitutional issues which should be addressed. 

    Encroachments on land lying under Lake Parker are governed by 29 V.S.A.
Chapter 11.  29 V.S.A. 401 requires the Department of Environmental
Conservation of the Agency of Natural Resources to manage public waters and
the lands lying under them below their mean water level as that level is
determined by the Water Resources Board.  The statute is founded in the
boatable water provisions of Chapter II, 67 of the Vermont Constitution and
the ancient public trust doctrine.  See, generally, State v. Central Vermont
Railway, Inc., 153 Vt. 337, 341-44 (1989); Hazen v. Perkins, 92 Vt. 414
(1918).  Lake Parker qualifies as "public waters" of the state because it is
navigable and not contained in a private pond or private preserve.  10 V.S.A.
 1422(4) and 29 V.S.A. 402(4).  The Secretary manages Lake Parker by
requiring permits for encroachments on lands lying under Lake Parker below
that mean water level, pursuant to 29 V.S.A. 401 and 403. 

    On November 14, 1972, the Water Resources Board adopted rules determining
mean water levels, under the authority of 29 V.S.A. 401.  Nothing in the
constitution or that statute requires the Board to determine the natural
water level absent any artificial obstructions.(FN1)  As some of the essential
facts are disputed or at least are not established by affidavits,
Respondent's Motion for Reconsideration of the order denying Respondent's
motion to dismiss the proceedings in this court is DENIED. 

    Because the hearing on the merits of this matter is now scheduled for
March 8, 1995, the Court reminds the parties of the deadlines for
interlocutory appeal and hereby advises the parties that no extensions of
those deadlines will be considered by the Court. 

    Respondent has today filed a motion to continue that hearing to after
June 1, 1995, based on Respondent's medical condition.  The Court will await
the Secretary's response before ruling on that motion. 

    Done at Montpelier, Vermont, this 15th day of February, 1995.



                                  ____________________________
                                  Merideth Wright
                                  Environmental Judge



FN1.  Whether Respondent may have a cause of action against the State for
compensation raises statute of limitations issues, 12 V.S.A. 501, and in
any event would not properly be in this court.