Ruling does not consider Public Trust Doctrine

Burlington, VT – the Harbormaster

Blodget Dock SinksThe Water Resources Board of the State of Vermont on November 7, 1996 reversed the permit authorizing the Blodgett Corporation to locate a 330 foot long post-supported dock in Lake Champlain.
The Dock would create an impediment to navigation. It would interrupt the use of Paddle Craft in the public waters along the Blodgett Property. Paddlers would be compelled to detour out into the waters of Lake Champlain beyond the Old Stone Pier. This would force some paddlers into uncomfortably deep waters, away from the shoreline scenery and into power and sail boat traffic lanes. Consequently, the Dock would adversely affect the “public good”, and according to § 403 (a) The statute clearly establishes an instance, applicable in the Appeal, when neither the Department of Environmental Conservation (DEC) nor the Water Recourses Board may issue a permit.

The decision further states:
No person shall be granted a permit if the encroachment adversely affect the public good.” The “public good” is “that which shall be for the greatest benefit of the people of the state of Vermont.

§ 402 (6). Section 405 explains:
In determining whether the encroachment will adversely affect the public good, the department shall consider the effect of the proposed encroachment as well as the potential cumulative effect of existing encroachments on water quality, fish and wildlife habitat, aquatic and shoreline vegetation, navigation and other recreational and public use, including fishing and swimming, consistency with the natural surroundings and consistency with municipal shoreland zoning ordinances or any applicable state plans.

The decision did not consider the Dock in light of the Public Trust Doctrine. As stated by the Vermont Supreme Court:
Under long-standing practice and precedent, we must not consider constitutional questions unless the disposition of the case requires it.

According to the findings the Dock adversely affects the “public good”, allowing the Water Resources Board to rule on the basis of statutes set out above, avoiding the Public Trust Doctrine.

The board stated because Blodgett had failed to meet its burden of proof to demonstrate the Dock would not result in a adverse effect on the pubic good, the Water Recourses Board will not address whether the Dock would be consistent with the Public Trust Doctrine.

Based on the information available to the DEC at the time they issued the initial permit, they were not aware that the public makes frequent use of the area of Lake Champlain in which the Dock would be located. If during its permitting process DEC had been provided the information about the public use of this section of the lake the DEC would have denied the permit.

The following appear to be the determining facts in this case:
31. Canoeing and kayaking (“Paddling”) are increasingly popular recreational activities on Lake Champlain. The popularity of canoes and kayaks (“Paddle Craft”) is demonstrated by the existence of several organized Paddling clubs in Vermont. The Vermont Paddlers Club has over 200 members, and the Champlain Kayak Club has over 210 members. 32. Paddle Craft need only about three to six inches of water to float. Therefore, the can easily navigate in the shallower waters of Lake Champlain along the shoreline.33. The lake water elevations in the area of Lake Champlain where the Dock would be located provide navigable conditions for Paddle Craft during most of the recreational season — from March to October. Lake Champlain’s lake water elevations are at their highest from March through July.

34. When the old Stone Pier (north of the proposed dock) is exposed, canoeists and kayakers can get out of their Paddle Craft and walk over the Old Stone Pier and continue paddling.

35. When the Sandbar (north of the proposed dock) is exposed, Paddlers must detour to the west of the Old Stone Pier or drag their Paddle Craft over the Sandbar to travel past the Blodgett shoreline.

36. Paddlers use the area of Lake Champlain where the Dock would be located. This area is easily accessible to Paddlers because they can launch their Paddle Craft at nearby Oakledge Park and travel north along eh shoreline towards downtown Burlington — passing along the shoreline of Blodgett Property.

37 The Champlain Kayak Club often sponsors evening paddles which leave the Burlington shore from Oakledge Park and travel along the shoreline of the Blodgett Property.

38. The shallower waters in the area where the Dock would be located provide natural protection for Paddlers from conflicts with larger, faster craft.

39. Some Paddlers, particularly beginners, prefer to paddle close to the shoreline in shallower waters because such waters are safer. Additionally, some Paddlers prefer to paddle closer to the shoreline because they believe that the shire line is aesthetically more interesting than open water.

40. When boats were tied up to the Dock, Paddlers traveling along the Blodgett shoreline would be compelled to pass at least 250 fee from the shore. This would cause undesirable conflicts with larger, faster craft. The Dock and its related uses would impede the public ability to pass on the water along the Blodgett shoreline.