 things that I've done in my career. I have a really good perspective on this issue and can provide you with helpful information. So I want to give you some of my background that's relevant to the testimony side of works. I participated in active 50 since 1995. From 1995 to 1999, I was active 15 attorney for A&R. And that meant I got to go to every district commission around the state and argue before them and represent A&R and as well as other state agencies. And I also here before the former environmental board on a number of occasions, I was the executive director of what was known as the Water Resources Board in 2003 when permit reform happened in 2003 and then went into effect in 2004. So what that meant was that I was actually at the table and had a front row seat when the change was made to move the environmental appeals from the environmental board to the court. So I was right there when it happened and part of what I want to do today is kind of convey what happened and why what was sort of the thinking around it and what's changed since then. Since the court was expanded to here, A&R and active 50 appeals, I've been before the court on a number of occasions, both representing state agencies. I was in A&R general counsel and at VNRC representing citizen groups. So I've been before the court wearing multiple hats. In addition, I had the privilege of serving as chair of the NRB during the Shulman administration. So for slightly over a year, I was administering the active 50 program and I saw how the NRB functioned in a post environmental board role. So those are the different perspectives I've had on this. When I get to testify about a lot of things, I don't usually have had such direct experience with an issue. I hope that I can convey some of that to all of you today. So I'm here today representing VNRC though and so I want to be really clear that VNRC strongly supports moving back to a board model for appeals. We believe that eliminating the environmental board was a major mistake that has harmed the effectiveness of active 50. That's one of the most important improvements that this committee can make in your vital efforts to modernize active 50. There are a number of reasons why VNRC takes that position. I'm going to bolt them out for you and then I'm going to go for each reason. I don't know if you were going to use the screen. I am going to use it but not for a while. You can shut it off for whatever really works. So what I want to go over in terms of why VNRC supports returning to a board model, there are really three major reasons. We believe that moving appeals from the environmental board has hampered consistency and administering active 15 is weakened in the program generally. We believe that a board is a better fit to render decisions on the numerous technical criteria of active 50 and we believe that a board process would be more nimble, less expensive and more efficient for applicants and all parties you know concerned about the impacts of the project. So I'll get to all those points but first I want to kind of you know walk you back to 2002 and kind of walk through like how did we get here? Like why did we make this change? Active 50 was enacted in 1970 and the environmental board was in place for 30 plus years. So what happened in 2002 that we got to a point where we were considering it and ultimately made the change to move appeals from the environmental board to the court. So if you can think back to 2002 I was 12 years old. I was governed on this first term. He campaigned on a number of issues permit reform was one of the issues he campaigned on and he made permit reform a top priority on his latest legislative agenda. Shortly after he came into office he had his agency draft the permit reform bill that was really very wide in scope. It was not what came out at the end. The first version of the permit reform bill basically would have altered the permit system from suit to nuts. It would have changed how district commissions work, it would have changed how zoning bodies worked and also had a component to change the appeals process. Pretty much right away the first part of the biennium there was really intense scrutiny of the suit to nuts overall the permit process and right away that didn't seem to be a big appetite for changing the whole process. Much like I think what you've heard today when we really when the committees really got into it what they heard was you know actually Act 250 works you know better than some of the systems a district commission process seems to be fairly good shape. There was more concern expressed about the zoning process quite frankly than there was about Act 250. People have routinely and I think still to this day routinely use Act 250 as sort of like nomenclature to mean any problem of the permit process but when you really kind of got beneath the surface you really realize it wasn't Act 250 and you realize that it wasn't the whole system that was so flawed that we had to change it radically. But what remained from that initial proposal was this idea that we should look at the appeals part of the process. So permit reform really became appeals reform because the other parts of it really fell to the wayside. So why did people want to look at the appeals process after deciding that the rest of the system was working well enough to not do a major overall. In my view there are several factors that you're going to hear about today over the course of your testimony because the same issues that are relevant to changing a system back from a court to a court. So one factor was the attorneys that practiced before the board both the environmental board and the water resources board or frustrated that there was not strict adherence to rules of evidence and procedures and particularly that there wasn't the ability to go through what they call the discovery process. I don't know how familiar you are with court proceedings but the discovery process is in courts and in front of some professional boards and you know when you file a complaint or an appeal parties get to find out what's the real problem is you get to submit questions to the parties to say well what is why are you concerned about this what's the basis of your concern. In Act 250 appeals it usually involved expert testimony because we're dealing with pretty technical issues. So you get to say who your experts and what do they believe and what do they believe it. That discovery process was not part of the citizen and by our middle board and it frustrated attorneys that they didn't have that information when they would go into a hearing to be able to test the evidence. And as I said there were other concerns about adherence to rules of evidence and procedure. So another factor was the environmental board was a nine member citizen board. So think about that. Your advocate going in front of this board there are nine people sitting that you need to convince to basically you know adopt your argument whatever it may be. There were some participants in that process I felt a nine member board was a little bit unwieldy. In particular I saw applicant lawyers and lawyers for agencies it was a little unnerving you had nine people they could ask witnesses questions you know when it came to board questioning time you know lawyers like to manage and have a controlled process and I'm a lawyer and I understand what that's about you do a lot of work prepping for trial and you had nine people from very backgrounds you had some lawyers but you have business people you can have farmers you can have engineers and you get questions from all these different perspective from your witnesses and you know all of a sudden your case was changing in front of your eyes that doesn't happen the court is a very controlled environment you have your discovery process you have one judge who doesn't ask some questions but certainly not like a nine member citizen board would. So I think that there was some feeling that that was a change that people wanted to see. Thirdly and this is fairly obvious but the board had been around for 30 years and during that period of time had made decisions that had made everybody in the state of Vermont at one time unhappy so it made applicants unhappy with some decisions they made citizens unhappy with some decisions it means agencies unhappy with some decisions and so it was sort of an erosion of like everybody was you know had something they could point to where they are like well maybe we should change this process because it didn't work out for us in one particular case or or another and finally in something that you know I'm sure that this committee will talk about is there was a concern that there were multiple appeal rounds so let me paint a picture of you of what the situation was in 2002. So in 2002 actually 50 appeals went to the citizen environmental board and in our water permits went to the water resources board. There were other A&R permits waste permits so we go to a waste facility now. Other permits like air permits I believe went to superior court. Zoning permits went to an environmental court. So I think you get the picture so there are all these permits going to different places and there was a feeling that if we had them all go to the same place there would be some inherent efficiency in doing that way it would take away some of the uncertainty. So that was certainly a factor. So that begs the question well you know how did we get to a court? Is the court the only way to really address those concerns and the answer is no and in fact during most of 2002 and 2003 when what was left of the big permit reform bill and become appeal reform bill was moving through the process most of the talk was about creating a professional board. There was talk about going to the environmental court. There was talk about having a three-dutch panel on the environmental court but there was also talk about having some sort of a professional board that could provide for some discovery, have somewhat tighter rules of procedure and evidence but still not be as formal as a court and we went up in so really the very end of 2003 where I think you know when I was following this really closely because mind you the water resources board was eliminated. So my job that staff that worked for me their jobs I everybody was really on edge was the thing that we were most concerned about for these two years it basically meant not only the existence of individual jobs but people who believe in these institutions right believe in the institution of the water resources board believe in the institution of the environmental board and my estimation was things were lean towards having some sort of a professional board but at the very end the compromise that we struck was that we would go to environmental court and Governor Douglas really felt strongly about environmental court but he also was pushing for changes to some of the active 50 criteria changes to how A&R permits interface with active 50 and party stats so those were also on the table and the deal was those things come off the table and exchange will go with your idea to go with the court and that's really what happened at the very end and when that happened it was it was sort of an uneasy feeling I think I know that you know people in the environmental community and we were immediately concerned that going to a court would be too formal of a process that it would create an expensive process that going from a nine member citizen board to one judge making decisions on the varied and varied active 50 criteria was a huge shift right you're going from all the way the nine member system board to one judge and we were concerned about what that would mean for the type of active 15 decisions not the results necessarily but sort of the sort of the substance of the decisions and would of course be able to provide the function that the environmental board did and so I in our estimation those concerns have come to fruition and that's why we're here today basically urging this committee to go back to some sort of a board model and I'll go I'll go through that I want to say one other thing just for the record in the history of active 50 which I kind of glossed over a huge part of the discussion in 2002 2003 was around who could appeal to the Supreme Court I don't know if you've dealt into this at all but when active 50 was you know created not all parties had the rights to appeal to the Supreme Court statutory parties had the right to appeal to the Supreme Court and applicants had the right to appeal to the Supreme Court I think I got that right but if I didn't stand it will let me know if I got it wrong but citizen groups did not have the right to go to Supreme Court environmental groups didn't have the right to go to Supreme Court so that was a big part of the overall compromise that change was made there was some change to the party status standard and and then there was a change to all parties can now appeal to the Supreme Court so I just want to be be clear about that when you should know that because it was you know part of the sort of historical change that happened in 2002 2003 which really was significant it was a significant event in the history of active 50 so stop there I'm going to go into sort of like today and why I'm here today and what the reasons are that you know see is having to go back to a board model but I'm happy to take some questions just on that part of it or you want me to keep I would just like to ask you that when you talk about the direction you like to see us go in terms of a board model that you touch on the difference between this board model and the original nine-member board model what has changed what improvements have happened that would warrant us to look at this model just keep that yeah sure absolutely so not hearing any other questions I'm gonna yes sir okay after all you said it's basically what you're saying is that you would agree with this on line 16 page to replacing that the resources board with a monitor I don't do your board yeah so after all you said that's what you mean yeah I should be more concise and I apologize I'm not that distance yes definitely favor that I'll explain a lot thank you but I also wanted to give you some of the history of kind of how we how we got here today I think it anyway so the first point is moving appeals in the environmental board has hampered consistency in activity in the week week in the administration of the program so until 2004 the environmental board through its decision on appeals was able to address questions about how various criteria should be interpreted and implemented the clarity and depth of environmental board decisions was able to communicate to district commissions and applicants all parties to active 50 basically how active 50 work so I want to give you an example of this so take for example the aesthetic criterion of active 50 under the activity statute statute says that to obtain the permit an applicant may not have an undue adverse effect on the status period as part of criteria name all the statute says nothing more than so that raises the question so how should the district commission judge what is an undue adverse effect on the stats what does it mean to have an undue adverse effect on the stats and you know during the the early part of active 50 issues started to be raised at district commissions appeals got to the environmental board does this project violate criteria 8 and so to answer this question the board had to create a test and they created a test and it's known famously as the qui-ji analysis I don't know how many of you have heard of the term the qui-ji analysis so it comes from this case in residential development which you remind us of the board broke this down and said well first we're going to look at what's adverse and then we'll look at what's undue they decided based on the help of I believe experts that they were able to consult with in the open hearing process that whether something fits into the context of its surroundings is the first step to see if something's in first and the answer to that question was yes they created a test for undue that involved so as a project violated clear community standard is a shocking and offensive to the average person and if those questions were answered in the affirmative could it be mitigating and it set forth different ways to mitigate now my point in going through this is not to have you know the qui-ji analysis but it's to basically try to give an example of you know what the board did to create clarity and consistency in active 50 decision it took one line in active 50 project shall not have an undue adverse effect on aesthetics and then created this very reason test that is held up in the Supreme Court that is used to this day you know by applicants they know what they have to do they know how to meet the test district commissions know how to apply the test and this is a type of decision that boards are really well suited to creating where courts are not courts are basically the nine member citizen panel was well suited with lots of different minds from lots of different perspectives to kind of break down the issue how are we going to take this one line and statute and bring it to life and make something you know reasonable out of it that people can follow and we'll protect the values in Vermont that would be one active 50 to protect courts really are not set up to do that courts are more set up to hearing from experts about this and that kind of voting up and down about who they believe but not really creating these sort of you know technical tests for dealing with issues and that's what I think is a main thing we've lost and going to the court these tests that were I think one of the things that have made the court work to the extent that it has to this point is that in the 2003 legislation the legislature says that the court needs to follow board precedent so all the board precedent on issues like the quiche analysis the court has to follow and that has kind of kept us on at least some bit of a track because we have a number of tests in the law like the quiche analysis but you know there are different facts and cases that come across all the time these tests are not static they need to evolve with the different issues that are before them there are new issues that were not decided by the board that that that deserve clarity and that is just something that we really lost with the with the court system and it's not you know court bad or good it's that what is the best fit what we're trying to do with the mix of technical legal issues in active 50 I don't know that I want I mean I could I want it to pull up here and maybe if we have time we can go back to it but have you guys looked at the e-note index you know what the e-note index is so so the e-note index is basically an electronic recitation of all the major decisions in active 50 so this I just wanted to show you and I and you know in your own leisure if you're if you're sadistic as I am you just go through this I mean look at all of the the different issues each of these little links is an issue that the environmental board created precedent on some of these issues you talked about above 2,500 feet what does that mean that's something that the environmental board rated a decision on to clarify in a particular case how that applied all these different jurisdictional issues you get down to some of the criteria but you can just see I just wanted to kind of get a sense of just the the vast amount of issues and really these are all still linking to environmental board and then Vermont Supreme Court decisions on environmental board cases but I wanted to just want to get down to the criteria themselves and so the criteria you could see you know the board is fleshed out what is air pollution oh it could be noise it could be dust that was not a given that all came from board decisions well how do you determine how much is too much of noise or dust there's a whole host of water pollution decisions but I think some of the best examples are really if you get into the the nines which deal with community impacts there are issues like existing cells cost of scattered development the criteria says that if something if a project constitute scattered development that you have to do some environmental way and scattered development determines whether you're outside an existing settlement these were undefined terms what does that mean you know the board went and had to define these terms in a really technical way and you know maybe this will come up maybe you won't but I just want you to maybe you should look at that at some point because it's creating these tests that I just don't think a court is really here's a definition of existing settlement you can see it there that's not in the statute that's not something that's in the statute it's something that the board that I think not just one judge not just a lawyer but there are those principles are not legal principles they're really planning principles they're land use principle and they're just you know literally dozens and dozens of issues like this that the board had opined on that really set the framework for active 50 told the district commissions kind of how to interpret the law how to implement the law told the applicants what to do and I just feel we've lost that we're not you know the course is not set up to make these things you have a question I think the one and then my question is I know we got a little bit into this tool so thank you for that but my question is when you have one liners such as the ones described is it helpful for legislation to direct the use of a rulemaking process to be able to tackle some of those those technical challenges that have that we see before us today such as greenhouse gas avoidance minimization that's another a newer one liner and what we were thinking about prior to the break is there's some sort of process by which the board would wrestle with these issues and so I guess my question is is it adequate enough to be silent about the process to be able to develop the that technical guidance on how to address those challenges or is it would in your mind be I think more robust and more responsible on our part to be able to direct the use of rulemaking to try to tackle some of those challenges that bring with it that public process to be able to evaluate the best implement something like a model that's used for other impacts such as I know it's a great question and the answer is it's a mix I think that is really good leads me to my next point so I think that the theory was in moving appeals to the court and knowing we're going to lose this sort of this sort of substantive decisions that the board could engage in rulemaking I think that in some cases it's a legislature is making a change it is appropriate to require rulemaking I think it's a really case by case basis I don't need to require rulemaking and guidance for everything though they're going to be little quirks and facts and things are going to come up and even if you have a rule it won't answer all the questions and you still need a tribunal to you know basically flesh out what that really means but yes I do think that sitting here and you know 2019 as opposed to 1970 when after 50 was written that we can be discerning about what's appropriate for rulemaking and guidance and I think sometimes you know you can certainly address issues in that way I think that in 2002-2003 there was an over reliance on their idea that rulemaking could substitute for all the type of sort of guidance that came out of these decisions and there haven't been some attempts of rulemaking by the board to clarify a couple of issues but having ministered the Act 250 program and knowing you know your you know your role at A&R knowing how government works rulemaking process is not for the faint of heart it's a it's a minimum nine month process usually longer than that that you know is cumbersome to get through so I think in some issues where you know you really the legislature really knows that it wants to do something but it wants the agency to kind of put the technical mean on the bonds is great when issues come up the ability of a tribunal to more nimbly kind of look at the facts and kind of issue a ruling that really kind of addresses tells the applicants and the parties and the district commission's kind of how we're gonna handle things I think you want both but yes I would definitely encourage you as we go through the bill to look at opportunities for rulemaking and technical guidance and I think like I said I think in 2002-2003 there was sort of an over-reliance on that rulemaking could just kind of cover I think we knew we were gonna do something that's why that that idea was there but I just don't think that it's it's really completely done it I think another issue that people thought you know might help fill the gap in the kind of the change was that there would be more ability for lawyers at the NRB to provide advice to the district commissions you have to debate an Act 250 you know forever about can lawyers for the board and provide advice to district commissions because they also work for the board and it was a feeling that well the board is not hearing appeals that frees up the lawyers to provide that advice and that is true and that and there is a benefit to that but it's not a substitute in my mind for the board the power of the board to be able to render these decisions for a couple reasons one is that advice is just advice it's not basically you know saying this is how things work it's basically the lawyer's job is to provide sort of options about how to interpret the statute and district commission makes the decision and then if the matter is appealed then the NRB is a party and once again they don't have the authority there are either one party in the court saying kind of this is how we look at this thing but it's really up to the court to ultimately decide what to write in the decisions and I can tell you from experience that the court has not just adopted what the NRB has recommended and kind of written out decisions in a way that the old environmental board used to use to write them and I would point out that there was under the old environmental board the best of both worlds there was an attorney often walled off from an appeal who was able to provide advice to district commissions if they wanted it so they're not mutually exclusive you can certainly still have that but I think rulemaking and advice provision from the board for like the type of tools that the legislature was envisioning would hope kind of fill the gap and I do think that is rulemaking has a role but I think you know you want it's not as efficient as a tool. We have to be aware of the time. You have to have one out-of-time guest who's listed last. Yeah. I'll go fast. Great. And then McCullough, is it quick? I've got a quick question and I'll create a representative that does a quick answer. Line 17 through 19 page 13. The structured membership including whether to be professional or semi-professional whether to have all the members be determined. Do you have a recommendation now used to be nine? Should it be three? Should it be pros, semi-pros? So yeah. I mean I you know I've been I think a professional professional board would work best. Wow. Grab your folders. Try you know try to include some non-professional membership. I'm interested in hearing the debate you know honestly I'm not saying I know the exact answer on that but frankly my vision was always will be talked about in 2002-2003 was having a professional board where you have a chair that was full-time and two other members at least that were hard times so they put in the time you know sort of like the public utility commission does but I'm certainly open I think the NRC is open to other ways to do it. I heard the testimony at the Commission for the future of Act 250 and the desire to have a broader membership I think you can do it that way but I've always envisioned it as a three you know member board. There's a bill I want to send you after I testified today from 2012 that I was sponsored by Representative Dean and Representative Dean Klein that created a professional board and just as an example and just to show you like and it was based on I think some of the bills back in 2003 that were floating around about a professional board so I mean that's just my feeling we want to see that and maybe get some more time on that. Yeah I think you're here for moving on. You should hear some other people and you're going to get a variety of opinions on that. I do want to say the last thing on this is that you know I think that this effort you're undertaking is really important I think we you know having worked around Act 50 is really important to modernize law to make your work for monitors and address the issues we want today and as we make changes it's going to be more important to have a board back in place to do the type of work that the board did in the early days of Act 50 because we're going to be making these changes and Representative Dolan's point is a good one that you could have guidance and rules you know as part of one tool in the toolbox but I think you're going to we're going to see sort of a revival of the needs to basically have these issues fleshed out. So really the last points are quicker so I think you know simply the board is a better fit to render decisions on technical criteria of Act 50 and that it could be more nimble and more efficient. So as I showed you by going through the Eno index you know as I already stated after these mix of law and technical issues there's a lot in there and it's just not the right fit to have one judge trying to interpret all of these mixed issues whether they're land use whether they're air, water, waste issues whether they're wildlife issues, threatened species issues. This is an inherent mix of technical issues and legal issues which I think a board is a better fit for. I think a board could be more efficient and less costly process for everybody. I can tell you having participated at the Environmental Board and the Environmental Court not a process was easy but certainly the court process is very expensive like I said it's really expert testimony, heavy experts are very expensive. I participated in a two-week trial, I participated in a three-week trial as a non-profit or representing citizens. The costs go up very quickly and it's very hard to keep up and having an intuitive board that has a little bit more flexibility that has its own expertise because it's a professional board so you don't have to spend as much time on some of the foundational issues that come up. They have staff that are able to assist them. The court right now basically has access to a law clerk to deal with these technical legal issues. I think that the process could be cheaper and it could be efficient. I think you could have hearing officers use like the Public Utility Commission uses for less complex cases. Right now whether it's a zoning fight about a setback from offense or it's about Walmart you know going up in a town it's this it's the same process you got to go up for the judge you got to go through the same process I think some of these matters do lend themselves to the use of hearing officers and I think that it could be more efficient. Two things quickly one is that concerns that I've heard about going to a board model one concern is that we want to preserve the independence of the board and the integrity of the decisions and have a political decision making process and you know see supports that I can't imagine it's a single solitary person entire state does not want those things and you know judges go through a judicial nominating process so it's not that the governor just gets to choose wherever they want they have to get a list of names from a judicial nominating committee we would certainly be in favor of using a process like that you know for this new board I don't agree that the old environmental board was you know making political decisions but to the extent that people are concerned about that we'll everybody wants integrity and independence and so whatever you could do to write into the statute a fair nominating process and independence I think you know we would support it and as I said I would be finding it difficult to believe that everybody would support that lastly going back to the issue of consolidation that I mentioned so that issue is not gone as you know it came up during the commission on the future of active 50 process and it was one of the factors raised in 2002-2003 I do not believe the consolidation is apparently efficient it makes trials you know if you have a zoning permit in active 15 and ANR permit all addressing storm water and you wait to consolidate them you have to often wait for the permits to catch up to each other so you get delays where during those delay times you could just be dealing with some of those issues there are different legal standards for all those issues so the decision needs to account for that and the evidence needs to account for that it makes if you do consolidate you're going to be guaranteed to have a longer trial and long trials are costly as I said you have your experts sitting there being there so I do not agree that consolidation inherently creates efficiencies I heard the testimony from the DPA and I talk with Alex afterwards so that's kind of my view on that but understanding that it's an issue the Dean Klein bill does allow for consolidation consolidation of AR and even zoning permits which is what we did with the environmental court so we consolidated all those appeal groups you could do that with the professional board there were bills floating around 2002 and 2003 who did that the Dean Klein bill does that and I'll just submit it to you and you can look at that I'm not advocating for that but I just know it's an issue and I want to acknowledge it but you can deal with it within the professional board so I've said a lot but you know I have flashbacks when I talk about this stuff and this is like therapy for me so I appreciate it I don't know who to send the bill to so it's represented my yeah there we go all right the other questions or hold our questions here I will submit them after that I didn't quite make them totally ready for front-time okay thanks well for purpose introduction my name is Ed Stanek I reside in Barrie City and I was employed by the Act 250 program for 32 years as a district coordinator mostly in District 5, Washington and Memorial Counties but also experiencing all the other eight districts throughout the state I'm here as citizen Stanek I firmly believe the tax pay-as-for-mon paid my salary for years and why training and expertise should be returned to the public in terms of assisting in whatever way I can interpreting the law the case law maybe where we go from here I'm not employed or working for any organization I'm strictly here on my own and I I'm here specifically to assist in the process to determine what is the best system and entity for the administration of Act 250 and the appellate reviews going forward in the 21st century given the land uses and the impacts on the ecosystems that we're going to face what's the best possible way of dealing with that I submit that the Vermont experience shows that it can be done by a citizen board in fact it has been done had been a success for 35 years by the environmental board and in fact and I haven't done a lot of research on this yet I'm poking around in other states to see if there's something similar to citizen appellate boards certainly there's nothing similar to Act 250 some have said over the years California Coastal Commission's similar to Act 250 some have said that Hawaii may have something similar to Act 250 but really not true Act 250 is extremely comprehensive but having said that I know that Oregon has a land use appellate board consisting of that's not judicial it consists of three attorneys and they hear the appeals of land use decisions I also saw and I haven't really done more research on this that Utah has a citizen appellate board and also so too does Florida trying to raise my eyebrows having been the Florida wasn't where they had anyway so having said that John gave you a lot of good information about the environmental board itself nine members of the community worked for a section quasi-judicial and they also administered the programs gave direction to the staff and they undertook rulemaking but I want to reinforce the point that the citizen board somehow even though they were not judges really wrestled with some very difficult issues and came up with great decisions which have been sustained the emphasis of course I feel was on fact-based decision-making not getting tied up in process of procedure so when they had to decide water pollution or erosion it was very very spax with the hand feet on the ground looking at the actual tract of land and the impacts but they did not ignore process they understood due process they understood property rights were involved so I just wanted to cite two examples of landmark decisions John touched on the radio the Quichy Lakes decision you know to put that in a context it was the late 1980s and it was this thing called aesthetics and everybody thought well that's often touch me touchy feely it's too subjective it's unconstitutional beauty's in the eyes of the beholder a lot of this was seething at the same time as as people of Vermont like the mountains like those open pastures and all but how do you come up with the decision John pointed out the bar the environmental board retained some experts and carved out what we call the Quichy Lakes protocol but I want to reinforce the point that this was appealed that was appealed by the corporation Quichy Lakes corporation which by the way was an as-built review so the environmental board had the benefit of seeing the condominiums on the hillside not typical active practice but the case went to the Vermont Supreme Court and the Vermont Supreme Court based upon the sterling fact finding done by the environmental board and its interpretation of the law the Vermont Supreme Court affirmed the environmental board's decision on aesthetics and that's now carved in stone in Vermont that we can review aesthetics there are some similar decisions on the federal level I think the most famous one is the U.S. Supreme Court decision involving Grand Central train station but that was more historic preservation and the more comprehensive review on aesthetics being a legitimate land use review in Vermont thanks to the environmental board thanks to Quichy Lakes and the second example which I think is important affects criterion 8a which deals with wildlife habitat necessary wildlife habitat again to put this in context the case I'm about to refer to called the Southview decision played out in southern Vermont and it was a deer yard case and what was going on nationwide at that time well a lot of cases were going to the United States Supreme Court involving land use cases that said this type of environmental regulation lanes control it was argued constitute the taking of private property and they had to be compensation pays similar to in the domain we cannot just over-regulate and just was handing in combat going on this era so in that context appeared the Southview decision for the deer yard down in southern Vermont and it will go its way through the process but again most importantly was the environmental board because the environmental board did the fact-finding which set the stage for the inevitable legal appeals that followed and the illegal appeals went not only to the Vermont Supreme Court but into the federal system not too many active 50 cases go into the federal courts this one did and it went to the Second Circuit Court of Appeals down in New York City some legal commentators will point out that the Second Circuit Court of Appeals is second only to the United States Supreme Court at least in its decisions on financial matters and others but the point is this that the Southview decision was upheld by the Second Circuit why because the environmental board did sound fact-finding all the courts will yield to that you give great deference to the administrative body as long as there is adequate fact-finding and my point is the environmental board nine citizens managed to do that in these two cases and there are others so what are the problems with the current Natural Resources Board I'm here to testify not only about appeals but about the administration of the program and I want to say that you know I I have great respect for former Senate Diane Snellig and none of my comments are directed personally against anybody in the program they are objective and I'll try to be as diplomatic as possible but it's about the administration of the program as a result of permit reform back in 2002 firstly I feel is an inherent conflict under the current system as to the powers and the role of the Natural Resources Board yes it's good to have assistance of district commissions and district court is making their decisions but I think it is an inherent conflict when the Natural Resources Board which is providing that assistance some would say in a dark matter trying to influence the decisions that same match of resources board turns around under 10 BSA 60 27 J and they're a party possibly to appealing that same decision my point is this that it doesn't look good that an entity which is having a role in the decision of the district commission finds a judicial panel then surfaces as a party on a level playing field with let's say the neighbors of the municipality and someone else that's an appellant before the judicial before the environmental court so that's a concern inherent conflicts in those wearing those two different hats currently John already pointed out that there was assistance back in the days of environmental board but there was a huge wall there was a huge solid wall between the district commission process and the environmental process was the appellant body the second problem is how does the Natural Resources Board determine which cases it's going to participate as a party on appeal some of us have asked for years now is there a policy or a procedure which indicates which of those cases I have a jurisdictional questions by coordinators or substantive appeals of commission decisions how does the NRB decide which of these cases they're going to appeal those the NRB presume that the commissions and the coordinators are reaching correct decision before it files an appeal my point here is that there really isn't any policy or procedure so the public can become aware now as to how the NRB decides which cases they're going to participate as a party and I checked I still can't find it on the website so I think I'm correct in saying no policy no procedure some of us feel there's over enthusiastic overuse of the minor application process and the administrative amendment process to approve projects which might otherwise benefit from having a hearing and it's important to note that the public participation of Act 250 really only takes place if an application goes to a hearing before the district commission that's the form when the neighbors show up and ask their questions and express their concerns if there is no hearing there really is no public participation yes the rules say if a project is commenced as a minor application request hearing but my experience was most people are very reluctant to make that request they want they don't want to come across as causing trouble for their neighbor that wants to build something they don't want to rock the boat they don't trust government but the flip side was equally true they would come to a hearing if the process itself scheduled to hearing so administrative amendments is the second category the first category was minus administrative amendments were meant really if you read the rule purely for record keeping purposes and if there were case studies done I think eyebrows would be raised as to the scope and types of projects which some districts are being encouraged the process as administrative amendments big multi-million dollar projects as administrative amendments so that's a concern the administration of the program at present another concern I guess the final concern about the NRB is when projects are repealed many of these cases now are resolved through settlement agreements and I think a lot of us settlement agreements resolved when the only entities participating in the appeal are the applicant and the NRB and there's nothing wrong with settlement agreements the settlement degree and state back to when there was an environmental board but this the distinction is this the environmental board said we welcome settlement agreements but we recognize a responsibility to do that independent fact-finding to ensure that the 10 criteria are met it's not enough to have two people come and say we reached an agreement actually 50 is not a lawsuit like plaintiff versus defendant there is a public responsibility public interest in staying in terms of the of the 10 criteria so anyway my point is that some of us feel that there is overuse of these settlement agreements perhaps to the detriment of the 10 criteria and the effects of the project itself problems with the environmental board now I also want to note that as I said I have a lot of respect for senator Snelling I had to get the pleasure of working with now Judge Durkin when he was the chair of the District Chief Commission and I also worked with Tom Judge Walsh when he was hired by the environmental board so I know these folks and they have great expertise and great intelligence but having said that they're part of the judicial system so you know one concern I have is I look at the statistics for the processing time by the by the environmental division of the security court and I don't want to say the numbers are cooked but I think if you go into those numbers deeper the average time the process is all sort of bunched together and if you look at it in terms of the contested cases and measure that at the time the environmental board might have taken the process the same type of case I dare say the environmental board probably did things somewhat quicker the Ronald decision the Ronald I'm sorry the Ronald court process is in my opinion hyper legalistic it doesn't have a focus on the fact-based interpretation of the current criteria by its nature it has diminished public participation if you can't pay to have counsel you can't play you can't go to court yes the judicial system in Vermont has encouraged pro-sac people to participate but easier said than done people are afraid to go into the court quite frankly so there has been a diminishment of public participation act 250 is not a tort action act 250 is not a contract dispute act 250 most of the time is not viewed as a divorce proceeding and it's a different mindset going into judicial proceeding so therefore you know I feel that a new board is the way to go a new citizen board similar to the Vermont environmental review board which is in the current bill I would favor a board more similar to the old environmental board rather than the public utility commission I have helped some folks out with stuff before the PSB now the TUC it's a different horse of a different color so the environmental board something like the environmental board would be my favorite a board that would have its emphasis on land use decisions rather than process and procedure a board that would consist of broad based expertise across section of the Vermont community the work wealth 32 years it can work well again and I think that's very important particularly if the legislature produces new jurisdictional triggers for act 250 the issues of forest fragmentation carpent impacts new jurisdiction of a high elevation settings etc. just as the environmental board had to figure out what do we do to breathe life into primary agricultural soils aesthetics undo water the same thing is going to play out you know with new jurisdictional triggers in cases that are appealed to the new entity and I think the Vermont community at large is better served by having that citizen panel again with expertise to sort those issues out like was done the first time so finally again I favorite a body that would be diligent with fact-based ability to do rulemaking and training of commissions and staff and that would be the answer to ensure predictability and consistent outcomes throughout the state I'd be glad to answer any questions that it would be fact-based and anchored in land use decisions rather than becoming a snarl overly in snarl in process and procedure fact-based on land use impacts on ecosystems I'd be glad to reduce my testimony to writing also that would be really helpful thank you thank you my name is Gregg Bobo yep Gregg Bobo general counsel the natural resources board I've been asked to testify regarding appeals and structured board I have speaking suspicion that the two gentlemen that testified before we might have some opinions with respect to the proposals out there I am taking a different approach and really attempting to address or all tend to address sort of the nuts and bolts of the appeals and structure of the natural resources board status quo what it looked like as the environmental board and what the proposal what the committee's proposal looks like in the draft bill I don't anticipate I'm going to take a whole lot of time so if there are questions along the way I'm happy to address them so I'm first going to go through the natural board natural resources board status quo how we deal with appeals environmental board appeals and then the proposed for month environmental review board appeals and I thought it might be helpful and you've all seen this this chart but I thought it might be helpful just to have a little bit of a review with respect to the layout and structure of the board and staff the board consists of statutorily four members and chair chair of course is chair Snelling this year with us today and there are she's the only paid staff or the only paid permanent board member there are four other volunteer board members we meet roughly once every two months to discuss matters of policy and general administration of the board then of course as you know all the sort of the middle bubbles are how our our staff is laid out and ultimately the board and the and the stat all exists to help administer and support the nine district commissions who are on the ground making decisions with respect to permitting on a daily basis in these nine different regions throughout the state currently just to make sure that we're all on the same page the nrb does not hear appeals from district commissions or district coordinators as the substance of matters and as you likely know we also don't hear appeals with respect to permitting decisions from the agency of natural resources the end and this is this this this arc is to what mr. Stanek was just discussing we do participate in appeals to the environmental court and those appeals consists primarily or entirely of district commission decisions concerning permits or permits permit denials and district criminal coordinator decisions concerning jurisdictional opinions. Jurisdictional opinions are issued by coordinators by request of any person to make a determination as to whether or not Act 250 jurisdiction exists over a given project so those are appealable to the environmental court just as permits and denials are appealable to the environmental court. We currently have some limited apparent some limited appellate authority to hear permits from district commissions with respect to fees as a matter of practice I don't believe we've heard a single one of these appeals in the six years that I've been at the natural resources board. We also have authority to hear appeals from determinations of energy compliance that are issued by the by the Department of Public Service. We were granted this authority a couple of years ago through Act 174. Similar to fees we have not yet heard one of these appeals as a general matter the these determinations I think are worked out pretty well in advance and are not necessary to be appealed. We do have that authority and finally with respect to our authority we do hear theoretically at least we're authorized to hear requests for findings of that and conclusions of law with respect to certain criteria and designated growth centers. So that's the status quo of appeals that's how how we function that's what we are authorized to hear it's a relatively small universe of appeals that were authorized to hear and a very small universe of appeals that we participate in as any other party at the environmental court. So this is just a graphic to show you where appeals go and as of now as I indicated to both district commission decisions regarding permits and district coordinator decisions regarding jurisdictional appeals both go to the environmental court and as Mr. Stanek had indicated the natural resources board on a case-by-case basis will make a determination as to one whether or not we intend the natural resources board intends to participate what position the board intends to take at the appeal and to what degree we intend to participate on any given appeal. So I did have an occasion to go through a question. Given the size of your staff and imagine if you decide to go through a court proceeding an appeals process that takes quite a bit of resources I imagine. How do you even can contemplate participating in an appeals process with such limited staff? You know that's a great question. So and then just to give you a little bit of background we currently have two attorneys myself and our associate general counsel I think we've all met until about three years ago we had three attorneys on staff. So our legal staff was cut by a third overnight three years ago. And it is difficult aside from a number of other tasks that the legal department manages at the natural resources board we have to put a significant amount of time into our appeals. And as you may or may not know litigating a case at the superior court by our own division can take quite a bit of time and resources. So I think to a certain degree our participation is at least in part limited by our resources. We do the best that we possibly can do with the resources that we have. And this graphic here shows approximately how many cases are on appeal at in any given year under the current system at the environmental board. So I'll give you a couple you know a little bit of time to reflect on the numbers here. I had a similar graphic that tracks the last six years of the environmental board. So you'll be able to see the average number is both in terms of quantity and the average duration that each that appeals took in order in order to conclude at the environmental court. Probably the most relevant column to look at is the last column the teacher pink column that takes both permanent appeals and J.O.'s and collates them into averages. So that's probably most relevant if you don't want to pay too close attention to all the other numbers. Probably so it's 14 and a half appeals on average over the last six years. And the average duration of each of those appeals was three hundred thirty five days at the environmental court. These numbers by the way these numbers I got from Jerry Tarrant submissions. He at some point maybe during the act 47 commission process he submitted printouts from the Superior Court that that indicated the length of duration of permanent J.O. appeals and I just put them into a graph. So the structure of the former environmental board I think you all have a general idea of what it looked like. It's great that we had both Mr. Stannick and Mr. Groveman here who had a lot of who were able to spend a lot of time and reflect on their experiences with the environmental board. I started working for the state after the natural resources board became the natural resources board and so I don't have a personal perspective on what it was like to work at the environmental board. So this is really just this is all just gleaned from the last set of statutes and rules that were in effect at the environmental board prior to 2004 before permit reform. So the board consisted of nine members appointed by the governor to a four year term. There were up to five alternates. The members were removed by cause. The chair served the pleasure of the governor. The chair of the board and this is this is an important piece of the former environmental board and this feature is actually included in the current proposal pervert. The chair of the board may appoint hearing officer or a subcommittee to hear any appeal or petition before it. So there was that flexibility for cases that may not have needed the full robust review of a nine-member board. There was flexibility to appoint hearing officer. I don't know how often that happened in practice. And at the time in 2003 the fee to appeal a decision to the environmental board was $100. Environmental board heard all matters de novo which is the same standard at which the court currently hears appeals from district commissions. And similar to the current court's jurisdiction, the former environmental board heard appeals from district commission permitting decisions and also decisions from district coordinators concerning jurisdiction. And here's a summary of the numbers from the last six years that the environmental board was in effect. And again, you know, I think if you want to pay most attention to the combined numbers in the pink or peach columns, you'll see that, in fact, Ed's intuition was correct. The environmental board took about 50 days on average less than the court to review to review appeals and to render a decision. It's also noteworthy, however, that there were a number of appeals of the environmental board heard was significantly more than the number that the court currently hears on average. I suppose that number can be attributed to a number of different factors. I don't know that anyone has the answer for sure as to why there are more appeals, why there were more appeals filed toward the environmental board. It may have something to do with access to the board as opposed to the court, but I'd rather not speculate. And then just briefly, I went through the current proposed bill that sets verb and this is the last, I looked at the last version that I had access to which was 5.3. I think that's the most current version still. And it seemed like a number of the elements of the structure of the board were yet to be determined, including the length of the term, how alternate to be used, and so forth. The current version of the statute appears to have used a lot of the same language from the last version of the statute that set up the environmental board so the chair would serve the pleasure of the governor. The chair would also be able to appoint a hearing officer or subcommittee to hear portions of or entire, entire appeals. And the proposed verb will also hear matters de novo, but it is noteworthy that the appellant, in the proposed version, the appellant will have the burden on all issues raised, which is a distinction between status quo and also the manner in which the environmental board heard appeals. And here's sort of a list of the jurisdiction that the proposed verb would have. Appeals from the district commission and district coordinator, so nothing's really changed. I just, I did want to point out to the committee that, though I think that was the intent of the bill, section 6089 of title 10, I think, does need to be edited in order to reflect that change. So not a big deal, just I'm going to keep your mind on it. One, I think one major distinction between current status quo and the environmental board verb is set up to hear appeals from A&R and DEC permitting, which is something that the court, something that the environmental board, well I guess I'm not, I believe the board heard some appeals with respect to decisions from the, from A&R and the department, and from DEC, but it's a significant switch from, certainly from what the NRB is currently set up to hear. By way of background, it's my understanding that there are about 10 permits appealed from DEC permitting that verb would be, would have jurisdiction over to consider should this bill proceed. Verb will not hear enforcement matters or appeals from legal making. Verb will not hear appeals from municipal boards. Appeals from municipal boards will go, will continue to go to the environmental court and appeals from verb will be heard on the record by the Supreme Court. And verb will also have the authority to approve, though it's not an appeal, regional plans. The proposed fee for an appeal to verb is $250. So that's just a quick overview of the differences between the three versions of the Natural Resources Board. I hope it provided you a bit of insight. I'm certainly happy to take any questions if you have any. What's the current cost typically? To appeal, where to appeal? To appeal to the superior court is $295 currently. That changes on a, maybe not yearly, but you know, it's not so often. The fee will change. That's the current fee. Very informative, by the way. Thank you. Oh, good. I have a question here. So right now the appeals are never on record. The way you have it written here is that it'll be on record. That's right. So right now they're not on record. So right now the appeals go from the district commissions to the superior court, DeNovo, which means the superior court will hear all the evidence that was put forward at the district commission, though, again and render its own legal conclusions with respect to the evidence that it hears on appeal. Appeals, the proposed, the proposed set out for verb, the verb, the Vermont Environmental Review Board, would hear appeals to DeNovo much in the same way that the superior court occurred in the years, and then on appeal to the Supreme Court it would be on the record, much in the way it is today. So the levels of appeal and the manner in which they're heard would not change. Okay, thanks. This is in the light of Leviny. Could you help me? Is this one a verb? It comes in now. I think you might be. I'm interested to know a little bit more about your opinion on accepting A&R DC permitting appeals. The reason, again, I'm worried about staff and staffing. Already I imagine you're putting some constraints of which cases you would take on in an appeals process. I imagine as you mentioned there's some limitation. Sure. It's causing you. And yet if adding on top of that an additional plus or minus ten new cases from a different body not tied to criteria, although there's some relationship there obviously, is worrisome. And I look at your opinion on that particular item. Sure. So let me just present this point. My answer that you'll hear in a moment is not an endorsement one way or the other of the decision that you will ultimately make with respect to appeals. But I think I can say, as a matter of fact, if the to be created for words to handle appeals from DEC, we would certainly need more staff to handle that. To handle those additional appeals, likely attorneys and administrative staff as well. The numbers that we would need, I couldn't really even offer you an educated guess right now. It's something that if you're interested in hearing you can put some more thought into. But I think I can say that we would certainly need more staff to handle that level of activity. Craig, do you know how many staff you had before when appeals went there? Um, twelve. John will probably know. Do you have to remember how many attorneys were on staff back? No, there were more attorneys. I don't remember the exact number. There were maybe two more attorneys. I think if this change was made just to keep in mind that, you know, the staffing that you've heard about before would have to be considered. If you're taking, you know, some of the work away there, you know, there's, I think you'd be moving things around some somehow. But yeah, there was more staff. Yeah, I mean, there's definitely more staff. We can get those numbers for you. Yeah, that'd be helpful. Thank you. Thank you so much. Sure, no problem. You have Jim DuMont up there. That's kind of an old-time thing. My name's Jim DuMont. I'm speaking strictly on behalf of my law office in Bristol. I've been engaged in land use and public service board litigation for about 40 years. So I'm speaking strictly for myself and I should say for my family. I've been representing citizens' groups and consumer groups. As long as I have, not to make money because that's not going to make money. Because I care and I care about this bill and I care about this process. And I have prepared what we find out there. I have paper copies in case anybody wants them. Can we say I'm going to report from the trenches? The reality today is that applicants and experts control the process. Permits routinely rely upon computer modeling and other highly technical expert submissions, such as hydro-cad store modeling, cad-net noise modeling, wetland degradation. And I can tell you that every good lawyer in DuMont represents developers and there's some great lawyers who represent developers and you're going to hear from some of them tomorrow. They will not use an expert that doesn't support their conclusion. As lawyers, we're trained not to do that. We go to one expert and the expert doesn't support the conclusion our client wants. We get another expert and get rid of the first one. A&R and the district commissions impose no requirements for full disclosure. So if you suppose you're doing storm modeling, and the modeling doesn't work out the way you want, and the first expert can get rid of that expert, you don't have to disclose that the first expert said this is going to be a disaster. Similarly, if you go forward with, say, your storm water modeling expert, what we found out is that either A&R or the district commissions have the capability to run those computer models. Those computer models are essential for storm water modeling and noise modeling. What we found out is that A&R has to take the word of the applicant's experts. Believe it or not, that is what's happening in Vermont right now in 2019. So in one case I had, I had clients, fortunately, who had the resources to hire their own hydrologists with the same computer model. And we got these so-called native data, the data format from the applicant's engineer. And we ran it through our experts computer. What happened was A&R message, A&R message, A&R message, A&R message. A&R message after A&R message, because the computer model said you can't do this. Your assumptions don't work. So that only came out at the environmental court stage where the disclosure of the underlying data was required. So unfortunately, I've had this discussion with Mr. Chatton many times. The way the system works in Vermont that the permits that give rise to presumption of compliance with its water quality air quality, those are negotiated by the applicant's experts with the agency over time. It could be months, it could be actually somewhere in two years where the applicant's experts are meeting with A&R's experts on the air quality. Until they reach a tentative agreement, there is no public process. There's not even notice to the public. There's only notice to the public when an agreement or a tentative agreement is reached. This is what your permit application is going to look like. And here's a draft permit. At that point, the public gets a whopping 30 days notice. During those 30 days, you can do a public records act request and if you're lucky, you'll get an answer within the 30 days. You have to hire your own expert, and then you have to figure out what's wrong with what's been negotiated for six months or 18 months between the applicant's experts and what we've discovered is that even when A&R has a public comment period, there's no requirement that the native data be provided to the public. And there's no requirement that the applicant allow the public on the site. For example, we had a wetlands case, and the applicant said that the citizens group was a pre-affirmative site visit, but the citizens who were neighbors and who would raise money to hire their expert were not allowed on the wetlands. It was only until the process reached the environmental court stage that it was an open process. And what I've been talking about is largely the water and air criteria that give rise to where the A&R permit gives rise to presumption of meeting there for these days. But there are other areas under Act 50 that don't hinge on presumptions such as traffic, visual and noise impacts. There's no presumption here, but it's very, very difficult for a neighbor or a citizen's group to respond to the applicant's expert unless the neighbor or the citizen's group has its own expert, which can cost 5, 10, 15, 25, 15 dollars. It's a lot of basics. So what I've learned is that the way this works is to develop what they spend on these processes towards the business aspects that are spent on them. Or at least it goes into the basis for the capital gain. It essentially is written off. The neighbor's and citizen's groups is a major undertaking to try and make this a level playing field. As a result, it's not true in all cases, but in many cases, the applicant's experts continue to determine the outcomes of many Act 50 cases. That's not what was originally intended for. So what are the advantages of moving back to the environmental court? First, the environmental board historically relied both on its expert staff and on expert containment in cases. I'll state here just one example where the board said, we're not happy with the evidence we're getting. And we have the right to hire our own expert who want to. In that particular case, they didn't. But it was well recognized. They're not happy with the quality of the evidence they're getting. To protect the public, they can hire their own expert. Of course, the board had not only nine citizens who had a broad background, they weren't just lawyers. They had a broad background. They also had professional staff who knew how these the nuts and bolts of hell are quality, quality of the evidence that went into the board. So as we heard from Mr. Stannock and Mr. Groban, the Creechy test was a great example of how the board's broad experience, nine citizens from all walks of life, staff who were professionals and its independent experts resulted in the Creechy test, which has been relied on and quoted probably 5,000 times since then, not only by courts and environmental board, but by the PUC, which has adopted the Creechy test. The environmental courts and law-trained judges work hard, they try to do their best, but they are law-trained judges there. They have the same training I have. They don't have the authority to hire experts there. They don't have the authority to hire experts. So the law-trained judges are stuck with the applicant's experts, unlike what the board has been mentioned already. I think the PUC already relies on its in-house experts when this is cited in cases, and it has the authority to hire experts for particular cases, which it does. I probably agree with Mr. Stanning that I think a broader representation of the public is good, whether it's nine or seven or five on a little leery of three. But if you look at how the PUC operates, you'll find that their professional staff does sometimes a fantastic job of asking really tough questions of, say, utility experts. That part of the process really works well. Right now, that can't happen in an active 50 case. Another advantage of moving back to the board model was better citizen participation. As court cases have recognized, one of the purposes of the act was to facilitate participation by all potentially affected persons. The quote from the case was to enfranchise local interests and to encourage public participation. I think it's fair to say that despite best efforts by our environmental court judges, as the President, to welcome pro-selegance the very nature of the process into our citizen involvement. As Mr. Stanning was saying, it's the model of a tort case or contract dispute. But we all know everybody in this room knows it's really a public interest that's being decided. It's not a fight between one private interest and another private interest. So the model really is important and it discourages citizens from participation. Citizens really can't cross-examine experts. Cross-examination is critical to the serving of public health. I have a couple of suggestions. Flushing on your bill, obviously, should abort consistent non-lawyers and blow up lawyers. Whether it's a prior seminar tonight, I think you need as broad a selection geographically as well as backgrounds as possible. And to facilitate citizen participation and a good process, I think your bill would be low-advised to require routine pretrial sharing of the courts, cadmophiles, the computer data, and other information that are relied on by experts. So it's just a matter of courts. We send your documents to whoever's on the other side. They reply to everybody. A&R, citizens' groups, applicants. We've got reports, we've got data to share. So it's a level playing field in that sense. And it costs almost nothing to applicants these days to just press send on the computer and email the data reports. We're not copying anything anymore. Second, there should be site visits on request before the trial. The environmental board used to do lots of site visits, but it's also necessary to have so there's a level playing field in a productive process that others have access in order to prepare their testimony. Pre-filed testimony has worked very well in front of the public. In my experience, it's worked well when it has been used in the environmental court. So at this moment, instead of the Perry Mason routine where somebody shows up in court and they do a direct examination, which could take an hour, sometimes direct examinations take a whole day, then the other side has to furiously take notes, figure out what their cross-examination is going to be based on what they heard an hour before or the day before, and then cross-examined for an hour or a day. Instead of that, it's very uns-friendly to citizens. And it puts a premium on legal showmanship. When we have written pre-filed testimony, everybody knows in advance what the witnesses are going to say because it's written out in question and answer. So a citizens group or ANR or the applicant will know what the other side is saying. It's not a game of surprise or ambush. Then there's cross-examination that is alive, but it's based on the same written pre-filed testimony that everybody's had for six days or six months. So that hopefully leads to better results but also fairer results. There are some cases where you might not want pre-filed testimony, so I would suggest that you require pre-filed testimony, but give them more authority to waive that. Similar with depositions. You all probably know what a deposition is, an employer asks an ex-provinist questions under over the corporate order here. If you have pre-filed testimony and if you have sharing of documents or sharing of data beforehand, you won't need most depositions. It would be the exception, not the rule that you need, but in some cases you really do need them to straighten out confusion in the pre-filed testimony or to find out really what the pre-filed testimony needs. I think a fair approach to that would be to if the parties can't agree on depositions to let the board decide on a case-by-case basis whether they should be able to take their depositions. And finally, to address the wall that we discussed several times this morning, the NRB used to have a rule. It opposed what the rule called the Chinese wall. And the rule stated explicitly that no staff member and no board member who was assisting the board with the appeal could have had anything to do with the district commission process. That's what... the Chinese wall is sort of a shorthand for what lawyers call separation, a kind of separation of functions. And if you look, say, across the lake to what happens in New York, the ironic park agency, which is also small, they have separation of functions. So if someone is working with an applicant, if a staff member is working with an applicant, they will not have anything to do with the park agency board members when the board members are deciding a contested case. And that provides fairness to everybody. And if you follow the Department of Procedure Act and contested cases, I think that the case already requires but you may explicit in any new statute. You would also make it easy for, say, the chairman of the NRB when the governor picks up the phone, calls the chairman of the NRB and says, this is what I want to have happen, which does happen. The chairman can then say, if you speak to the governor, I can't participate in the case. It's your choice. Because if I talk about the case with you, I think it's unnecessary. So that's what I'm going to say. Questions for Mr. Dumont? It's late in the afternoon when everybody is falling asleep. That's going to be a dorm. Good afternoon. Thank you for your testimony. My question is again about the ex parte. That's under that question, the judicial system that the Public Utility Commission uses where the wall is between the board hearing officer and the Public Utility Public Service Department which is the citizen advocate. So there can be ex parte communication between the citizen advocate and the those involved in the particular case. But red that wall is is between the hearing officer and within the the appeals process. So how would it play out here? I'm just trying to get a better understanding of where the wall is. Where's that ex parte? I got the example with the Governor's conversation but I'm trying to get kind of more a typical model and what would that look like? In part of the case here the department is a full party in the way the structure now has been turned between here. It's free to talk to anybody about anything. But the hearing officer is on the other side. I'm trying to get a better sense of how it would apply here. How do you create the right system so the public gets confidence in that without hampering those those ex parte communications are helpful for those that are in the negotiation prior to coming to a board. So I'm just trying to get a better sense of what you're trying to recommend. The probate courts are a good example in the law. I think the probate courts are part of the system that is pretty universally welcomed and people would even think it's doing a great job because the probate registers are not bound by the ex parte contact rules. So you can walk into a probate court in the Haiti courthouse in Middlebury and the probate register will help you fill out the paperwork and say this is what happens next but they don't have anything to do with any decision making by the probate judge. So here you can have people who are designated not to have contact with the board who will work with citizens here's how you fill out this form here's how the deal works you won't have a problem. It's just like if there's staff that's advising a district commission on the case you just know who those are in that case the board in the next cases. Thank you. When you say to facilitate citizen participation with our team pre-trial sharing reports scattered about staff well we lie down by experts does that mean if you hire an expert an expert gives you information that doesn't help your case so you don't want to know that that's the right expert for your case Would you be required to tell them everyone you've ever spoken to what does this mean? That actually isn't really the question requiring one's answer under the existing rules of civil procedure governing general solicitation one does not have to disclose experts that you've had contact with or decided not to use there is an exception built into existing civil rules that is hardly ever used so in general the rule is if you elect not to use an expert you don't have to disclose anything you communicated about with that expert and I would presume that would apply here but there is an exception built into civil rules well this is short hand so I would say sharing of reports files buying and testifying the expert to avoid to make that clear someone you choose not to use for whatever reason there will be no duty to disclose new communications from that person I thought I had that doped out it's the opposite of what you were advocating for that this process should require disclosure of all experts that had been retained is that what you tried to say or I heard accurately I probably wasn't clear about that for a good reason the federal rules of civil procedure which has been adopted in Vermont is the Vermont rules of civil procedure generally carved out from disclosure any communications with an expert decided not to use so you don't have to disclose anything about them there are exceptions for example if you had an expert who was doing destructive testing of a machine that failed and you had to speak to that expert to see what that part was like before the instructive testing happened you would have a right to go back to that expert but other than that the idea is to encourage lawyers to communicate freely and if they get bad news they can use that second question deposition I'm thinking deposition is like I'm in a bit further right now but you need my information but it sounded like you used it in a different way deposition is used for both purposes one is before trial to find out what that person is really thinking or what they really base their technology on the other is what you've mentioned which is a witness can't be available for the trial and you take their deposition to preserve it since they can't be and that you would want to make that available in all cases no matter you say thank you right committee we find ourselves in an unusual spot a little bit of time before the three o'clock show open that's real welcome it started we're shifting here to h357 also known as the wanton ways to go first witness is Barry Laundere what did you say last time Laundere welcome my name is Barry Laundere I'm the Vermont State Director for the Humane Society of the United States and thank you for allowing me to testify in support of h357 on behalf of all of our supporters and volunteers here in the state HSU has actively worked to eliminate inhumane and unfair sport hunting practices including body gripping traps and snares, bear baiting wildlife killing contest captive hunting trophy hunting of rare and endangered species that are inappropriate for the species and the uses of alternative ammunition that don't utilize lead in order to protect wildlife that might consume that carry-in that has fragments left over I go through all this to really emphasize that these other than wanton ways has much relevance to this bill but to say that as an organization we do not take a position against fair chase subsistence hunting we focus on practices that we think should be reformed behaviors that even among many legitimate ethical hunters would find to be unethical hunting behavior and that's the focus of the wanton ways bill that we're debating here today I think we described in the last hearing what wanton ways is all I will say is that there is a case record built by the department really that shows that this is an issue a decade ago when the department put forward a proposal to the Fish and Wildlife Board they had researched it they thought that a wanton ways law was necessary and would be helpful in going after coaching and other illegal and unethical hunting behaviors and they did a survey of their wardens and found based on that survey an estimated 60 to 100 wanton ways incidents reported each year that's based on reporting from wardens not from members of the public or any other groups so you know clearly this was an issue that wardens were seeing and found it to be a problem and something that the department felt should be addressed at that time so we're not you know making up an issue out of nothing or certainly not trying to put in place a policy that is any different than dozens of other states have in place right now I would also point out that in my testimony you'll see a link to an article in the Mountain Journal published back in December that really spoke to the issue of decline in hunting decline in participation and some of the reasons for that this person for the author of that article and other individuals that are quoted in that article are hunters sportsmen themselves and believe that nonetheless the things regarding ethical hunting humane killing of the animal and no one waste are principles of ethical hunting by not living up to those standards by not having laws in place that require those standards it encourages bad behavior which then encourages and creates a public perception problem for hunters that are doing the right thing that are ethical hunters that dissuades people from wanting to participate in that activity and encourages other landowners and others to not want that activity to be happening on their land and so I think there's a strong case even if you're coming at this sportsman's perspective of why you want a one-waste law on the book to at least create a baseline standard that says we're not going to kill an animal if the person has no intent to remove or use it for any any purpose that seems to me to be a pretty fair standard to have in place and a fair law to have in place so I will just kind of respond a little bit to some of the questions and concerns that came out of the last hearing to hopefully to address some of them before I am happy to take your question so I think a lot of this revolved around issue enforcement and can it be enforced and what is this something that's worthy and capable of being enforced I think it's important to think of that and maybe in two components and one is can this committee can this legislature craft a law or policy that's clear enough that wardens can go out and enforce it in a fairly neutral way and apply it appropriately where it needs to be applied and then two is is the actual evidence collection can you gather the evidence as a ward necessary enough to really make charges stick so I'll focus on maybe on the first aspect of enforcement and some of the questions that were raised about that I know the issue in the bill about the term reasonable and what that meant and where that was appropriate and did that leave so much up for interpretation that you'd never be able to determine what is a reasonable effort to retrieve the animal first that is a standard that is routinely used to denote a standard that a legislature would like to put in place in law but also realizing that there is discretion among the law enforcement authority for how and where that's carried out it's a term that's commonly used and it's not an unheard of standard if you look at the Vermont Statute I did a search for the word reasonable it appears 2044 times in the entire Vermont Statute if you limit that to just the wildlife statute and regulations it's 167 times the word reasonable appears that I look at every instance I'm sure there's something maybe not applicable but it's a word that's commonly used let's put that way and so I think it's entirely appropriate for this bill two I think there were questions about what activities that we wanted to have covered under this law and in particular nuisance activities or someone protecting their property or themselves from damage being done that is not the intent of this bill and we would be more than happy to work with the committee to create an exception for that you know that was never intended to be a focus of this of this of this bill there already I would point out in the furbearer statute nuisance statute there already is a exemption contained in that that section of the law that exempts individuals from all other laws and regulations of the state so you were nuisance trapping a furbearer on your land for example you already would be exempt but if it needs to be made entirely clear that that's not what we're focusing on we're happy to work with the committee to do that and I also think that can be done in conjunction with there are some animals such as bearer that have particular requirements that you have to work with the department if they are causing a problem on your land you could make that instinct where you give an exemption but you may get contingent upon them complying with any other species specific regulations that may be in place two I think there was a question of what did the bill mean by use and in particular I think there was a question around were we considering the use of fur to be a legitimate use yes that is what the intent of the bill is we're happy to look at for example language in Alaska that specifically references the use of edible meat and fur of the animal however would be helpful for this committee to make that clear that we're not just talking about eating the meat of the animal for consumption that there are other uses of particularly the fur that would be legitimate and would be not considered one waste if that was done and we're again happy to make the bill clear if there are questions about that and finally I think there's a question about field dressing of animals and whether that would be appropriate I would have no problem with a provision saying if the animal is appropriately field dressed in accordance with Fish and Wildlife regulations that we wouldn't consider that one waste I do think that it's important for that to be in response to an actual policy of the department or the Fish and Wildlife Board and not just an open ended exemption but I think as long as the person was complying with what the department felt like was the appropriate way to field dress a particular species of animals we have no problem not considering that a one waste issue I think that's reasonable too and that maybe hopefully will address some of the what I thought were some misperceptions about what the intent behind the bill was and hopefully we'll indicate that we're willing to work with you to craft the right bill if I have just two more minutes you know the second question is about enforcement by wardens themselves can this be law of the enforced and I think it's fairly obvious that it can be enforced in every circumstance where we might think one waste happened of course not but that's the same situations in place for almost all Fish and Wildlife regulations we have trap check times we have bag limits and a lot of these things can be difficult to know whether someone's complying with them it doesn't mean we don't have the standard in place other states have these policies they can enforce it I think we can figure out how to do that in our states well and I think it also is important because it sends a message to discourage that small percentage of hunters and trappers who are going to engage in that type of font and waste behavior it signals to them by having a law in the books that this is not appropriate behavior that you can get in trouble for doing it I think that is a effective discouragement for people participating in it and I'll also say too we often hear on other issues that the department relies quite a bit on hunters and trappers themselves to self-regulate to self-enforce to report when there's other problematic behaviors going on by others that reflects badly on them or their violations of the law I think on a bill like this or a law like this we would certainly be looking to that participation and collaboration with hunting and trapping trappers who may be able to see violations happening in a clearer way than others might so I'd also like to just respond to a couple arguments that were put forward outside of the enforcement area that that we already have one wage standard for certain species so this isn't needed and I appreciate the department singling out bear, loose and certain species for additional requirements for what a person might have to do to be in compliance with the law because of the unique aspect of the species nothing about this bill would change that again like I said earlier all we're trying to do is create a baseline standard that you don't kill an animal and tend to use that animal for need or for fur and if there are additional policies for certain species you can certainly layer those on top and nothing in this bill would change those regulations that are already on the books I've already mentioned that it isn't an infrequent problem according to the department's own warden survey and then finally I mean I'd like you know there was I think in a very unfortunate analogy that was made by the commissioner at the last hearing to describe this activity as analogous to someone hitting an animal with their car and not going not going to retrieve the animal and somehow those were equivalent and by prohibiting one and not prohibiting the other you would somehow be condoning that behavior I mean I don't it's difficult to respond because you know having known people who did strike an animal in their car the idea that you would make a comparison that someone who doesn't after striking an animal hopefully they're still alive at that point doesn't manage to make it out of their car and track the animal down that that is the same as someone who deliberately shoots an animal and doesn't make any attempt to retrieve it I mean I just want to say it's disturbing to me that that position will be put forward by our Fish and Wildlife Department I don't think that's appropriate, I don't think it's analogous at all and I don't think it has anything to do with the bill that we're discussing so I'm happy to answer any questions you have about 357 how many can I ask is it my floor so number one I just want to state this that you did not talk anything about Vermont you skated around it the way I understood it you have statistics from 2009 I need them for like 2018 and specifics like if you go by this it's own 60 to 100 wanton waste events a year that's in 2009 it's 2019 what are they what are the actual statistics you have to ask the department I'm asking you I have no idea the department has I mean one I will say you said I didn't mention but you put it in here this is your this is your testimony you said would you like me to provide the source for that I will provide the I will provide the article where Kim Royer makes that exact statement just asking for facts that's all I'm asking for and I'm telling you first of all you said I didn't provide Vermont that is we're in 2019 okay I don't have that information all I can tell you is that's the information that was put forward by the department based on a survey they conducted with their wardens when they were pushing for a wanton waste ban where are the facts now today you would have to ask the department they may have to conduct but you're coming in here giving me these facts and it's old facts it is the only facts available on this I'm good I'm good for right now wide but I'm good okay anyone else have questions thank you oh thank you I'm a lead bullet for lead ammunition mm-hmm what are all the kinds of ammunition I'm not the person to ask but in terms of other materials a copper is the main one that is the most that I'm aware of that's the most typical replacement for lead she's asking a question that has nothing to do with this what it was in it has nothing to do with the bill I don't think I could even hear the question I'm sorry I asked about lead ammunition because I read it in your but it doesn't have to both in this system I'm happy to answer questions but I mean it does have to do with this bill because uh animals that are left discarded on the land and not removed contain lead fragments that can be consumed by raptors and other species that cause health problems and ultimately death so to the extent that this law would require people to remove those animals you're helping alleviate the lead ammunition poisoning issue with other wildlife species I just didn't know what other kinds of ammunition ammunition there were and how much lead ammunition there is but I'm not sure I mean historically it's all lead ammunition except for water fowl in which a lead ban went in place in the early 90s I believe but other than that the vast majority of ammunition contains lead thank you next up we have a is your testimony up on the webpage I just emailed it some of us are paper free and we prefer to see the testimony because we don't try not to collect a lot of paper yeah oh it's up I'm not as savvy as Barry so I'm going to have to read my testimony off of the paper for the record I am Brenigal Denzi I am president and founder of Protector of Wildlife in Vermont we are an all-volunteer grassroots nonprofit we represent over 2,500 members and supporters throughout Vermont thank you for the invitation today to provide testimony in support of our 357 ban on wanting waste as a preliminary matter I do think it's important to go on record again because it seems as though there's misinformation that's shared about my organization that we are an anti-hunting group I've gone on record in various committee hearings refuting that I think it is important because I don't want that messaging to detract from the important work that we perform our organization is happy to have hunters and anglers who are supporters some of them have emailed you in support of this bill and a few actually wanted to testify as well so we had hope that the department would have supported this legislation especially in light of their prior support back in 2009 of a similar effort it was going to go through the rulemaking process not the legislature and we really wanted to take this unique opportunity to collaborate with various stakeholders you know hunters and trappers to figure out how do we remedy an area of shared concern I would like to respond to some of the issues that were raised at the last hearing again I want to emphasize that this bill is not anti-hunting or anti-trapping I think that it might be argued that this bill is pro-hunting and pro-trapping because it is going to address some of the really unsanitary behaviors that take place that tarnish ethical responsible sustenance hunters and hunters that respect their quarry it seeks to apply consequences to those who engage in wasteful killing just as many other states do another point to make is that it was never the bill's intent to have a landowner have to use the carcass of a rabid animal as suggested in the commissioner's testimony and I'm sorry this wasn't clear in earlier versions but if the activity is not already exempted under title 10, 48, 28 we recommend that an exemption be made for people who are killing wildlife and defensive properties so an example of that would be killing raccoons who are getting into your chicken coo or a fisher or what have you who certainly wouldn't have to use or consume the pellet or the meat of that animal another point is the commissioner argued that the wanton waste ban is not too hard to enforce but as Barry mentioned the department's law enforcement division already enforces a wanton waste law on waterfowl in exchange should be able to be done for wildlife as well it's my opinion that just because a law is difficult to enforce it doesn't necessarily mean that it's not an important law I mean think about Vermont's 75 year ban on snares type of trap it's been banned for a very long time I would assume a law to enforce but it's still still a good law in my opinion and as I know that you know as lawmakers that laws just aren't about consequences for wrongdoers laws are also about deterrence deterring bad behavior so again on the topic of clarification that is needed to the bill but I recognize page one line 16 of the bill needs to be better defined and to offer more clarity we recommend a laska's law that requires in part to salvage human use to edible meat or fur of the animal or foal and I know Representative Bates had a question about consuming meat certainly if you shoot a deer and you don't eat the meat you just maybe use the hide you could certainly give that medicine to a neighbor or someone else and you have to consume them yourself the original intent of the bill that HSUS provided without such definition of the term use the law can be easily circumvented for example someone could take one feather of a crow they killed and said that they're using the animal I would like to highlight prior efforts to enact the law and waste ban by department members Kim Royer is a senior staff member a well respected biologist at the department as well as a retired warden were two of the lead folks back in 2009 who supported a wanton waste ban Royer was mentioned in a 2009 article and a Times artist as follows I quote Kim Royer biologist with the Vermont Fish and Wildlife Department told about 30 people in attendance that the wanton waste rule was needed particularly as a public perception matter under the proposal anyone who kills or wounds an animal while hunting, fishing or trapping must make an effort to retrieve that animal so that it may be utilized end quote also in reference to the prior wanton waste ban efforts former commissioner Wayne LaRouche some of you may remember he stated in the 2006 Burlington Free Press article I quote the wardens have no tools to address those people that are bad actors and will always be bad actors end quote recently a retired warden showed his support for a wanton waste ban and submitted an email to the Fish and Wildlife Board that is in the attachments that you have this was just last April the retired warden who is also my understanding a trapper and a hunter he states I quote I believe is way beyond the time that the Vermont Fish and Wildlife Department needs to implement a wanton waste law I am aware that critics say they are just coyotes I have seen bears, deer and wild turkeys that were harvested hung and left to rot I have also witnessed numerous spring shot muskrats held intact discarded by the side of the road end quote there are likely other wardens who would support a ban on wanton waste but they are advised by the department to not share their personal opinions on department policy so we have to wait for people like retired wardens to have the ability to come out and speak their truth about various wildlife policies there is an example of the stifling of dissenting opinions documented in your handouts wardens who recently well a year ago posed the open season on coyotes were told prescriptively by the colonel to keep that opinion to themselves this email is in the attached from May 2017 email is sent by the colonel to his lieutenants with regards to a coyote season please keep that opinion to verbal only and among your peers the commissioner is fighting daily to keep the status quo so the only reason why I mention that is I suspect that there would be more wardens and department staff who would support our efforts but I have to wonder if their opinions on this is stifled another area of concern for us and our state's wildlife and our debilitators who are members of our organization is that intact lead riddled purposes are poisoning bald eagles and other scavengers like bobcats other states have wanton waste laws and so can Vermont Alaska is one of our country's most pro hunting states they strongly support their wanton waste law last week I spoke with the biologist with a 40 year history working in Alaska fishing wildlife he was named to the fishing game board two different times three different times by two different governors he has decades of experience working with Alaska fishing game and he told me that hunters their value their wanton waste law he told me that Alaska hunters or I should say that the wardens have guidelines that assist them in enforcement and I can discuss those guidelines with you if you'd like in Wyoming, Colorado have wanton waste laws if the department has concerns regarding enforcement as commissioner quarter mentioned there are a whole pool of resources for him to pull from if I was able to talk to somebody from Alaska for 20 minutes and get such wonderful information we could certainly do the same which animals do we value and which do we not value I think this is really important during the commissioner's testimony the committee that his department would be looking into possibly enacting perhaps field dressing regulations on Vermont's I quote valued species and he gave deer as an example the department should not be able to make policy decisions and management decisions based on which species they feel has value how members believe that all wildlife has value whether it's an ant or a goat or a moose they all have intrinsic value they all should be respected they all have a fierce will to survive crows are one of the most intelligent species they're known to have the mental abilities of a 7 year old child they get their killed in crow shooting contests in Vermont they're used as target practice both are examples of wanton waste that happen every year and I'm almost done I would like to draw attention to the Vermont Statute 10 BSA 4081 that requires the following I quote the protection, management and conservation of fish, wildlife and fur-bearing animals in this state are in the interest of the public welfare the state through the commissioner of fish and wildlife shall safeguard the fish, wildlife and fur-bearing animals for the people of the state and the state shall fulfill this duty with the constant and continual vigilance so I don't know how the department is upholding the statutory requirement if they're essentially condoning killing foxes and otters and deer and coyotes purely for fun I don't know where the protection where the conservation even the management aspects are in that statutory mandate you may hear that there's just a few bad apples that are conducting these behaviors but the research that my colleagues and I some of them are in the room perform quite frequently prove differently, I promise you if anyone wants to sit down with me I have videos, I have photos more than you could possibly want of wanting ways that's happening in Vermont and I just want to quickly show this is an example you can pass it around a Vermont Hunter posted it to our page kill them for fun and to save deer and turkey deer and turkey these are two spring or summer shots which are more worthless when they're killed in the summer that's a hunter saying you kill them for fun we have numerous crows who were killed last year Vermont Hunter nobody eats crows as far as I know coyotes who were killed and piled and dumped in the woods someone just complained to the commissioner last year about coming across a pile a box of dead coyotes at Eagle Mountain while he probably was out hiking with his wife and perhaps the most disturbing photo is one, and I don't know where it went of a friend here this is a raccoon who was shot in the face by a hunter and he says, exploited, yeah ha ha ha don't know why this raccoon was shot in the face still alive and arrow protruding through its nose with blood his friends are rooting him on reported back to the law enforcement ahead and he said nothing can be done about that now if there was a wanted waste law perhaps that would have been wanted waste unless the raccoon was getting into a chicken coop and it was killed and defends the property but at least law enforcement would have been able to do something about that and in closing in 2017 UVM conducted a survey by the Center for World Studies that the Vermont wildlife policies should prohibit the wanting waste of wildlife except when the animals are causing damage to property or agricultural products the result of the survey indicates that 70.5% of Vermonters who responded supported policies that prohibit the intentional and wasteful destruction of Vermont's wildlife now those survey results don't surprise me at all what does surprise me is the department not supporting by partisan legislation that we're hoping the committee is interested in asking so if anybody has any questions I'll do my best to answer I have a very easy question I promise it's not exposed just clarify the value issue does a chipmunk have the same value as a moose in the context of someone shooting chipmunks with a BB gun or a gun for fun yes I don't think anyone should be able to kill an animal for fun I think if an animal is killed it should be killed for either sustenance or for use ok for further questions thank you wow an animal is shot by a hunter and the hunter uses it for meat or takes the skin to sell the pellet what happens to the bullet in those cases I don't know anything about ballistics but I know that the bullets do fragment in that if a carcass is left in the woods that any animal is scavenging on that carcass that has been shot in it is exposed to lead poisoning that's whether it's a deer or a coyote coyotes are a bit concerned because they're killed in great numbers they are routinely left in the field representative McCullough Lynn Bates my apologies my mind must have been wandering through the woods you gave a survey right near the end of your testimony did you or will you please qualify that survey for us and tell us when that was done there is a link on the testimony that brings you right to our website that tells you what Center for Rural Studies methodology is for Dr. Wildlight did pay for that survey question along with the question relating to trapping in 2017 and we chose Center for Rural Studies because they are one of the most highly respected survey outfits the actual survey itself in the methodology and press release and all of that that's on our website 2017 the survey was conducted thank you is the link you're talking about at the bottom of the last page of your first page or is it one of the lines the link should be it's the one that starts put note 3 yeah Dr. Wicks just one more question about that chipmunk thing thinking of the chip so you know the grade school kid comes home and they're playing with his baby gun and stuff and his friends say hey I got a better idea let's set a rat trap and catch the chipmunk and so where do you guys classify that is that hunting, trapping you know is that just wanton waste if someone is killing rats and mice, I mean I have mice that chewed up my wires in my car I mean I don't kill them I use other methods but I would assume that they're killing them for a reason I don't think again the intent of the bill I don't want to lose sight of all the good things of the bill and get entrenched in mice but I do get me saying when I'm talking about again we have to encompass the whole thing in the bill it's like wild animals and it encompasses I believe pretty much everything so you have to eliminate wild animals and specifically specify what you want to go after right so I'm just going back to my question where do you classify that as for the chipmunk issue how do you classify that I classify it the way that the bill is currently written is that it is wildlife and that if someone is killing a chipmunk they should be killing it planning to eat a chipmunk or if you're killing it because it's causing a problem that would be exempted from a bill that I'd like to see to go on record and I think I get me where you're going I don't think that any animal should be killed for fun I know Representative Tarantino made an example of kids shooting crows and ravens and I hope he's not endorsing that as an example of why can't kids do this anymore I mean I don't think that's a good example I know one of our members is a child psychologist and she wrote a testimony to you in support of this bill I don't think it's ever a good idea to allow a child just to kill something for the sake of killing I mean you need to respect all wildlife because if you're treating even the smallest of animals that way I can't see how that would translate into treating a deer or other animals wouldn't you support education then wouldn't you support the education in schools or H-19 H-19 wouldn't you support that yeah, of course thank you Representative Forge back on back on line 15 line 14, line 15 of the bill is that you're feeling that it should be worded to say as used in this section waste means to intentionally knowingly recklessly or with criminal negligence and salvage for human use prefer a man or a child that's Alaska's wording that's what you would say that paragraph should say I think that would be better than how it's written now would offer a bit more clarity Representative Dolan back to you I guess my just to build on the chipmunk model it allowed me to mention that maybe not chipmunks or a problem but groundhogs or stumps in the compost and I know that in and of itself those are have been known to be nuisance species in homes or homesteads where you're trying to manage your garden and that's bringing for subsistence or just managing a garden period and we are prohibited from transporting wildlife such as a groundhog from your property to anywhere else and so I've searched through the other state models and I think all of us understand the interest to ensure that that people are educated and thoughtful and at the same time are hunting and supporting their recreational interests there so how do we handle I think this language doesn't allow for us to handle some of that management of nuisance species such as those chronic I think underground city of groundhogs so I know that that's a struggle where people are trying to be thoughtful and yet that's a for bearing species that can be pretty disruptive to a homeowner yeah I agree I did mention I know I covered a lot that it would be my recommendation I mentioned in my verbal testimony that there should be an exemption for landowners to address wild animals causing damage I know Commissioner Porter mentioned that people would have to use raccoons or foxes that have rabies or something I mean that was never the intent of the bill when I worked with Barry on the bill my intent of the bill from the get-go was that there would always be an exemption for landowners or municipalities or farmers to kill a groundhog or a fisher or whatever it might be causing damage to some property solutions to wildlife conflicts on our website we do offer a lot of great solutions for people to handle things non-weekly and sustainably but that's not for everybody and if somebody prepares to shoot or trap an animal causing damage that the wanted way span would not apply to them we need to keep moving thank you my name is Peggy Larson I'm a veterinarian master's degree in psychology I've worked on animal issues now that I'm retired I go out with police on animal use cases I'm going to cut my part kind of short because everything's Barry and Brenna have really covered the law part of this I'm going to focus a little bit more on what a veterinarian sees sorry I'm a bit hoarse I'm just getting over what a bit but anyway regarding the 6200 animals that were killed back in 2016 or whatever it was I had two deer wind up in my office that almost got shot the other one had an arrow and a sign of life I couldn't say either one of them I know that veterinarians aren't supposed to do this but I took an oath and I said that I would care for animals so when they come in I didn't care what they are when they come into my office I will take care of them and unfortunately with these two I had teens and guys they shouldn't have been shot in the first place you've asked some questions about bullets and that sort of thing so I'm going to briefly just approach your question then bullets fragments and it only takes a fragment about the size probably what a 7 shot or a shotgun poisoning animal that small amount of lead will cause brain damage brain damage and also muscle damage so what happens when these animals are exposed to it is they can't eat they've lost the ability to eat they've also lost the muscular functions they can't go after prey let's see we've covered the carvices that have been intimately killed left to rot which of course leaves the lead with the animal several different outfits that studied this the wildlife center in Virginia they studied raptors including eagle cultures fox and owls that had ingested lead and what they found was that the higher the lead level of course obviously the less chance of recovery but even at the levels that they saw the animals died over euthanized College of Veterinary Medicine in Minnesota they treat about 120 to 130 eagles bald eagles every year exposed to lead most of the died were euthanized once that brain damage occurs that muscle damage occurs that's what makes this so tragic these wasted animals are lying there with the lead in their bodies National Park Service California they were very instrumental in getting the condor back from the endangered species list and most of the condors that they worked with had to have chelation therapy to try to save them from lead poisoning okay so spent lead ammunition that's on the ground maybe from shooting ranges whatever you have or areas that are heavily hunted much of this lead that's left from these darkasses gets into the water supply goes into the stream, goes into the rivers and actually goes into the lakes so there's contamination now covered that oh the only delusin I wanted to say is there are five doctors in my family my ex-husband is a psychiatrist and from the experience of my experience being a prosecutor and dealing with violent criminals and my husband Max's husband's experience with treating children with violent problems much many of these children have been exposed to animal abuse at some point in their lives so much so that the FBI has now considered animals sentient just because of the relationship with violence in the family and to the animals there are multiple sources on the internet that will tell you the damage that's done to children that are allowed to commit violence against animals we really need to look into these things and while I've nuanced all of these from others, while life is not the exclusive property of those who just want to kill them for fun that's all I have to say thank you you're very welcome I'll get that on your own a discussion about wanting to waste before this committee February 26th between the Fish and Wildlife Department Commissioner and a committee member who wanted far from the issue at hand the discussion focused on the generally true but irrelevant fact that due to scavengers nothing goes to waste in nature it is true that if a deer or a coyote will be consumed it will be large and small however that is not the meaning of waste within the context of the North American model which explicitly means human non-use of a resource killing for a frivolous purpose this is abundantly clear the definition above the word wanting cements the issue as it exclusively applies to and describes only human motivations and actions if I kill a fox with no need of myself tossing it in the bushes to rot afterwards does not constitute a legitimate purpose otherwise it is straining to rationalize killing for killing sake that is the behavior of civil society has a strong interest in discouraging for reasons well beyond wilder conservation also at this committee's February 26th meeting a hypothetical Vermont youth was enlisted to suggest that there is a nostalgic wholesomeness to walling away a Saturday at killing pro's growing up in Vermont can be like a Norman Rock ball painting I had the unfettered run of surrounding woods fields, ponds and streams started fishing at three, learning to shoot at five my father was an Air Force expert marksman, NRA Fire Arms instructor and a Vermont Hunter Safety instructor and a dear honey at ten I learned from my grandfather a third generation propper Vermont native and his two friends Pete and Joan of Ari we had guns, bows, slingshots soda can cannons spent cartridge case cannons and a real cannon my brother and I would burn through boxes of gun rifle ammunition until our targets were shredded and then turned to shooting daisy stems of 50 feet we did our share of dumb things but we never would never kill for fun we would no more shoot crows for entertainment than pull wings off flies or crush barn kittens with hay bales even before dad started to teach us to shoot he taught us a deep respect for life to never kill without justification and then to always kill quickly along with reading his books like Wild Animals I Have Known by Thomas and Seedle that lesson was crystallized for me when he found us happily torturing a blood sucker when I was four I imagine that most Vermont kids learned hunting ethics in broadening the same way the lessons take to varying degrees and unfortunately some people don't get it yet and now they can reach wide audiences a few people I knew as a kid would casually abandon a wounded or dead animal in the woods let alone kill just with thrill or out of malice and hopefully no one I knew would kill as many animals as possible or torment those not already dead yet it happens they probably always had but now it can be filmed in detail and publicized on social media and however relatively few such hunters may be their ecological impact can be locally destructive and moreover their visibility heightened dramatically in our social media age sullies the image of all hunting in the eyes of non-hunters demographics have changed they were changed in the 1960s when parents of friends of mine just moved to the area for job at IBM would not be the kids weren't allowed in the woods today many Vermonters may know so few hunters that they can easily believe that these crude and cruel videos and photos represent the norm especially when they are tolerated by the Fish and Wildlife Department and even more so when they can see the department oppose efforts to stop them ironically according to Kim Royer around 2006 or 2007 our Fish and Wildlife Department possibly inspired to ban the Moncaio-Kiopah killing contest around that time to try to stop them suggesting regulations banning wanting to waste the Fish and Wildlife Board the effort failed fast forward to 2018 and the legislature had to ban the killing contest over our Fish and Wildlife Department's opposition now the Commissioner at least appears to be doing a full 180 to oppose banning wanting to waste too taken together there seems to be a pattern at a January 2017 meeting of this committee on age 60 in Vermont-Kiopah population report the Commissioner noted that the department had asked hunters not to post disrespectful videos of piles of dead coyotes and stated that such social media posts were regretful but notably did not express any criticism of the behavior itself digging a little deeper the department leadership now blames the undermining of hunting and the department on animal rights rules that uncover abusive wacky and statin photos and videos rather than the people who do the wacky I know that personally talking to them personally it is like blaming or building inspector for undermining your house value by exposing rotten rafters to your bank all together these may play well to a select few but I suspect that they'd fuel a feedback loop that continues to road the image of hunting hunters in the department in the eyes of the general public that is a bad long game strategy there are pressing reasons to re-brand hunting to adapt to the changing demographics and landscape of my first year to preserve hunting we should not only highlight its critical importance to our common environment and the benefits to society, local communities and individual hunters and their families but also simultaneously stand unequivocally against its abuses so that hunting can at least start to retain and eventually regain the understanding and support of all the monitors whether they hunt or not supporting an age of 357 along with any direct reduction and wanted waste would be an important step in that process Any questions? Happy to feel any See none? Alright, thank you for coming in One more witness who's going to be on the phone at four o'clock Do you want to see if you can get it? Sure The Stan, Pennsylvania in their language doesn't use the term use but uses the term retrieve, retain and lawfully dispose of Have you considered moving away from the term use? You know, many of the states have targeted their wanton laws specifically to game species because they don't want to see obviously the mistreatment of game species where you're operating under a license for your bad limit specific to the species you're hunting but in this case and we know Pennsylvania is one of the country's leading states for deer herd management interested to know your response to that That lady I'm not familiar with the term use Don't use the term use but they talk about it about making a reasonable effort to retrieve, retain or lawfully dispose of such game or wildlife And I think that that is the difference I don't know that it's similar but I haven't looked at all of them It's not my bill so I have to No, I'm just curious to know whether that would be you know, adequate or not I think I have some concerns about it because one of the purposes that I see in terms of purposes behind wanton waste in my view is to present the needless killing like killing for the sake of killing and so I think that the language in Pennsylvania you still leave open the ability for people to use animals as a target practice and to perhaps also for trophy taking and I don't think that either of those practices are things that the Vermont public in general would support Thank you Thank you very much You're welcome, thank you Any discussion on what we've heard Yes, I have a question I'm just wondering other than members of our committee are there anybody sitting out there that are opposed to this bill, all I've heard are people that are in favor of the bill I would say I would be remiss not to tell you that this is a remarkable stack these are messages for all of us and that every one of them is supporting the bill and they're all individuals coming from all over the state if you want to look through them they're available there are more and there are more coming obviously to all of us email who just wave their hand I can't I don't know I had one question You didn't see my hand wave but you read my mind we've already heard sort of in response representative the administration doesn't support this bill other than that I will stipulate that I have gotten and I presume most of the committee has a plethora of emails supporting this legislation and in addition to that I will estimate and I think this is an interesting an interesting statement I've gotten more email about this in support of and none against of this bill then I got combined pro and con in H57 in Washington and I think that really and take that with a grain of salt take that for 50% I think that that speaks volumes what the modders want and yes, they have not all that all of those letters of support have not all come from consumptive users they've come from hunters, I'm a hunter I'm from a hunting tradition family I'm a draper so committees receive these same things maybe I've received more because I've got several other fish and wildlife bills on the board here but I haven't found one yet who is against this this bill other than the commissioner and aka the administration so to sort of answer that that query I find that astounding in my years as a legislator to have it that strong certainly COW has done a good job on this I've been studying the materials that Michael agreed together and put together the hunting laws in other states and the impression that I have looking through this is that every the states listed here are states with hunting as being a really important traditional use of our landscape which is a good thing it gave me the impression that each one is trying to also solve some issues I mean if you're trying to manage a deer herd you want to manage that deer herd in a sustainable way possible so it's there for tomorrow's hunt next year's hunt and it looks like in some states they've been dealing with abandonment of carcasses even abandonment of carcasses at butcher facilities which I thought was interesting but I found that that there was a real just from reading these a real effort for these states to ensure two things one is that sustainable management of species the other is and I think it gets to it a lot of these states are out west where you have more species whether it be baldigals or others that are scavengers so it's in the interest of states to ensure that there's no impact on the viability of scavenger related species and this year we are having populations recovering from being non-existent so I would I think we did receive a number of comments obviously it would be helpful for me to hear more from the hunting community to get a sense for what we're trying to achieve here and I think this was a start but I think we already identified some loopholes and the hunting community come and help us address this inherent problem whether it was 2009 or this year there's obviously a need there I think together with users may be helpful in how we move forward that was good carry I thought it was a lot of carry to the point but I think there's even a number of you mentioned but maybe there's a lot of people coming first I was I'm coming but we can certainly we had emails emails that is before the talk we heard the commissioner saying that where a bear was taken but the parts of the bear that were supposed to be used were used and the bear carcass was put in place that was supposed to be put so in that instance it's not being wasted do people always take the bullets out of the the community I think this is a problem either we shouldn't use the bullets that are let in them or people can use whatever bullets they want they should always take the bullets out and not leave them out there because if we're going to go further with this what kinds of bullets are what happens to the bullets that's a problem I think I can help you with that so my go to gun is my 30-odd sex lead bullet, lead core the whole thing pass through my gun has pass through shots so that means it goes entirely through the end there's if it hits the gun generally it just smashes right through so you'll never see your bullet so I never see it ever when I process my animals I never see it so what's the cost between that and a bullet that would do no harm to other but there are some bullets that people use that do kind of fragment in lower caliber guns they will use 22 caliber guns are notorious for fragmenting so when they hit a bullet they tumble and fragment lower caliber guns are noted for that so that is a true statement that they do fragment so how much are the less expensive out of the bullet so right now really all ammunition is expensive no matter what because the federal government has stepped in and most bullet self then you're paying a high dollar for all ammunition whether it's trap loads to 30 out of 6 shells to 9mm they're all very expensive that's a pretty simple question to answer that we can go online and look at so let's keep the conversation going Representative McCullough I'm thinking that for myself I would like to see this bill actually make it through which would mean we voted out by the afternoon and make it clear having said that I think it is important that we we find some number we can get 6 6 we can come in here at the commissioners behest who are hunters to say whatever it is they've got to say in a time period that we can allot to this so this committee can hear hunters who have been absent either in email or in person to tell us I'm a I'm a hunter and I'm from a hunting traditions family and I think this one bill is not important the other and if anybody can find these people maybe Representative Bates could maybe the commissioner could but I would like to get them in here and if we have an opportunity on our schedule to do that on Thursday or Friday and then consider what they've got to say and then make our decision based on all the evidence I would like to do that if we can't do that this week then oh well it doesn't make the crossover but we still probably no, we still should if they're available here they will be those people's testing and so then the commissioner would be reasonable from the chair Representative Bates just heard my request if you might be able to find it or even if you could get one that would be good I'd like to make one statement I find it utterly amazing that we so readily condone aborting babies and voted on it and passed it out and yet we don't want to kill a goddamn coyote amazes me what I've heard is that we would like to take more testimony from some hunters hunters who might help us with the language hunters who might not be supportive of it and how do others feel about trying to make crossover I know I'm not, I won't care one way the other way we make whether we make a crossover I just think that there may have to be some changes in this bill maybe we won't find maybe there's nobody out there that's opposed to this bill I don't know if there is someone we should at least listen to them if we don't make crossover we don't make crossover you have a couple names I think there were two probably I can probably get one too can you send those along to me please okay thank you all we are adjourned until tomorrow morning