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 for permission to take an interlocutory appeal of
this court's February 15, 1995 order denying Respondent's motion to dismiss
and motion for reconsideration of an earlier order denying her motion to
dismiss.  Respondent is represented by Duncan F. Kilmartin, Esq.;  the
Secretary is represented by Salvatore P. Spinosa, Esq., pro hac vice. 

     While the motion for interlocutory appeal of the earlier order is out of
time, the February 15th order addressed and expanded on the matters involved
in the earlier order, and Respondent would be able to address all the related
issues in any appeal of the February 15th order. 

     However, the requirements of V.R.A.P. 5(b)(1) are not met for this case.
 The February 15th order ruled that the constitutional issues in the present
case depend, under State v. Malmquist, 114 Vt. 96 (1944), on a number of
facts which are not undisputed: 

In the present case, whether the lake level set by the Board caused an
unconstitutional taking of Respondent's property depends on the level at
which Lake Parker was maintained prior to the 1975 dam, the length of time it
was so maintained, and the degree to which the 1975 dam changed that level,
if at all, and whether Respondent or her predecessor was in fact benefitted
by the 1975 stabilization of the lake level.  Even if the 1975 dam caused an
unconstitutional taking of Respondent's property, it is not clear that such a
taking would invalidate the present administrative order; it may only provide
Respondent with a claim for compensation to the State.(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. 

Thus, although the Malmquist rule presents a controlling question of law, an
immediate appeal will not materially advance the termination of the
litigation.  It is necessary to develop the facts at trial in order to
determine whether under Malmquist there has been an unconstitutional taking.
Only if the court rules that there has been no unconstitutional taking will
the constitutional issue be ripe for appeal.  Respondent's motion for
permission to take an interlocutory appeal is, therefore, DENIED. 

     The hearing on the merits of this matter is now scheduled for June 1,
1995.  The Court reminds the parties that an application to the Supreme Court
for interlocutory appeal under V.R.A.P. 5(b)(1) after denial of the motion by
the trial court does not stay the merits hearing unless a stay pending appeal
is granted under V.R.A.P. 8.  For the purposes of the Supreme Court's
simultaneous consideration of Respondent's motion for interlocutory appeal
and motion for stay, this Court hereby sua sponte denies a stay in this
matter pending appeal, should the Supreme Court grant the motion for
permission to appeal. 


     Done at Montpelier, Vermont, this 13th day of March, 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.