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Panton farm runoff: Supreme Court denies farm’s request

PANTON — The Vermont Supreme Court has denied a request from the owners of a Panton dairy farm that would have alleviated the burden of a court order issued in March 2022, which requires the farm to make expensive changes in order to stop runoff from flowing across a neighbors’ land and into Lake Champlain.

The decision stemmed from a six-day trial that played out in an Addison County courtroom in December 2021 and January 2022.  The high-profile case prompted closer scrutiny of the state’s regulatory system and moved lawmakers to consider strengthening the state’s right to farm law, which protects farmers from nuisance cases.

“The facts remain unchanged in the record before us, and they do not justify, as the trial court stated, ‘modification or elimination’” of the 2022 order, Supreme Court Justice Karen Carroll wrote in the decision issued May 24.

The Hoppers, a family that owns land (called Aerie Point Holdings) on the shore of Lake Champlain, brought the case against farmers Hans, Gerard and Rudy Vorsteveld in April 2020, alleging that the farmers were channeling a large amount of runoff through their land and into the lake.

During the jury trial, the Vorstevelds explained that the runoff was coming from their tile drains, perforated pipes that are buried three-feet deep in the soil and empty into common discharge points, which then direct the water over the Hoppers’ land and into the lake. Farmers use tile drains as a tool to improve soil quality and encourage crop growth by draining water from the soil, which is rich in clay in Addison County.

“Sediment and particles carried by the water have increased phosphorus and E. coli concentrations in Aerie Point’s farm pond and have caused algae blooms in the lake,” Carroll wrote in her decision.

To stop the runoff, the Vorstevelds would likely need to remove the drainage infrastructure, a process that could damage the land and cost millions of dollars, according to court documents.

Addison Superior Court Judge Mary Teachout issued the 2022 decision stating that the farmers needed to find a way to stop the runoff. Then, the Vorstevelds missed a deadline to appeal the decision to the Supreme Court.

The Supreme Court’s decision issued on Friday came in response to a request the farmers filed in August 2023, asking for relief from Teachout’s 2022 order. Among several arguments, the Vorstevelds said “any measure (the farm) could take to prevent water runoff would be expensive, impractical, and unsustainable,” Carroll wrote in a summary of the Vorstevelds’ request.

The Vorstevelds also argued that an Environmental Protection Agency investigation regarding filled wetlands on the farm prevented the farmers from complying with court orders. Another argument the farmers presented was that the Hoppers could no longer claim that they suffered harm from the runoff because they no longer grazed animals on the affected land. Also, some areas on the Hoppers’ land that had previously seen erosion had been resolved, they argued, according to the description within the Supreme Court’s order.

Finally, the Vorstevelds argued that a change to Vermont’s right to farm law, which took place in 2022 after the judgment was issued, meant that they were being held “to a higher standard of farming practices than other Vermont farms.”

Carroll wrote that the Vorstevelds seek to “relitigate issues relating to the injunction that were decided at trial and in posttrial proceedings and (have) not demonstrated that there is a significant  change” in circumstances that arose after the 2022 order.

Separately, Teachout, the Addison Superior Court judge, ruled earlier this year that the farmers were in contempt of court because they had not made efforts to solve the runoff problem. While they had been “considering costly and logistically complex solutions,” Teachout wrote at the time, the farmers “did not begin to develop compliance plans” until the contempt hearing “was imminent.”

When Teachout issued the contempt order, she gave the Hoppers and the Vorstevelds four months to engage in mediation and to form a plan for the farm. The discussions have ended without an agreement, according to Merrill Bent, attorney for the Hoppers, who said she filed a motion last week for additional contempt sanctions as a result.

“The ecological damage caused by the farm’s discharges has continued this whole time,” Bent said in an email. “It is time for the Farm to stop making excuses and comply with the law and the court’s orders.”

Claudine Safar, attorney for the Vorstevelds, did not immediately respond to a request for comment.

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