SCOVT Affirms dismissal of one count of environmental contamination for failure to join a necessary party, but reverses dismissal of remaining counts and remands for further consideration of municipal immunity defense

 

Belter v. City of Burlington, 2025 VT 35  [filed June 27, 2025]

Cohen J. Plaintiffs John Belter, Joyce Belter, David Belter, and the Belter Family Partnership seek to hold defendant City of Burlington liable for soil and water contamination caused by runoff from Burlington International Airport, which abuts their property in South Burlington.  Plaintiffs appeal the civil division’s order dismissing their complaint for failure to join a necessary and indispensable party, and on the basis of municipal immunity.  Plaintiffs claim the trial court erred in its analysis of Vermont Rule of Civil Procedure 19 by ignoring Vermont’s common law lack of contribution among joint tortfeasors and not considering the specific claims brought in the case below.  Plaintiffs further argue the trial court erred in its analysis of the extent of municipal immunity by failing to acknowledge the property-maintenance functions at the center of plaintiff’s claims against defendant.  We affirm in part and reverse in part.

Count 1 of the complaint alleged negligence in allowing the Guard to use firefighting foams that contaminated plaintiffs’ property with PFAS. The remaining counts alleged  trespass in the form of PFAS entering plaintiffs’ property; private nuisance due to the infiltration of PFAS into the drinking water;  a de facto taking of the property by defendant through the contamination of the property by PFAS;  violation of the Vermont Groundwater Protection Act, 10 V.S.A. § 1410(a)(4); and  direct negligence by defendant for discharging polluted water onto plaintiff’s property.   

The trial court dismissed plaintiffs’ complaint for failure to join a party under Vermont Rule of Civil Procedure 12(b)(7). This Court has not stated the standard of review for dismissal under Rule 12(b)(7).  Because our rules are modeled on the Federal Rules of Civil Procedure, we look to federal case law for guidance on the applicable standard.  We adopt the federal abuse of discretion standard for a dismissal under Rule 12(b)(7) for failure to join a party.

Rule 19(a)(2) requires joinder of a person if the person claims an interest in the action and disposition in their absence "may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person's claimed interest." Plaintiffs claimed in Count 1 that “on multiple occasions [the Guard] provided firefighting services, and practiced fighting fires, at [Burlington airport] and on its Base in a negligent manner, directly and proximately causing the PFAS contamination of Plaintiffs’ property.” 

We agree with the trial court that Count 1 is entirely based in the negligence of the unjoined third parties. The Guard and the United States clearly have an interest in Count 1 and a finding on this count by a trial court could lead to inconsistent determinations of fault for the United States, which is currently involved in similar litigation in another court.  The trial court properly concluded that the United States and the Guard were necessary parties to this claim and acted within its discretion in dismissing it under Rule 12(b)(7). The dismissal of Count 1 is affirmed.

However, the remaining counts are  all based on the spread of contaminated water from defendant’s property, not the Guard’s firefighting activities.  We conclude that the Guard and the United States were not necessary parties to Counts 2-5 and 7 of the complaint under either prong of Rule 19(a)(2) and their joinder was therefore not required.  The court abused its discretion is dismissing Counts 2-5 and 7. 

  

Because we conclude that the court improperly dismissed Counts 2-5 and 7 for nonjoinder, we must consider the court’s ruling that to the extent insurance is not available to cover plaintiffs’ claims, they are barred by municipal immunity for Counts 2-3, 5, and 7.The trial court dismissed plaintiffs’ complaint on this ground  under Rule 12(b)(1) for lack of subject-matter jurisdiction. We review this decision de novo, taking all facts pled in the complaint as true and resolving all doubts in favor of the nonmoving party.  Jordan v. State Agency of Transp., 166 Vt. 509, 511, 702 A.2d 58, 60 (1997) (applying de novo standard when reviewing dismissal for lack of subject matter jurisdiction).

 Here, the trial court focused on the Guard’s firefighting function and found that activity to be shielded by municipal immunity.    It is undisputed that firefighting has long been recognized as a governmental function.  However, a determination of immunity must be based on the purpose of the activity at the root of plaintiffs’ complaint.  Vt. Gas Sys. v. City of Burlington, 153 Vt. 210, 214, (1989).  In Counts 2-3, 5, and 7, plaintiffs are not seeking to hold defendant liable for its firefighting functions, but for alleged failures of maintenance and operation of the airport that caused polluted water to run onto their land.  These broader functions are arguably proprietary. But the record before us is insufficient to allow us to make such a determination in the first instance, however.  We therefore reverse and remand for the court to consider whether municipal immunity applies to the maintenance and operation activities alleged in the surviving counts of the complaint.

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The dismissal of Counts 2-5 and 7 is reversed and the matter is remanded for further proceedings consistent with this opinion.

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Public trust, boatable waters: State has not authorized muncipality to prohibit recreational use of municipal water supply.

City of Montpelier v. Barnett, 2012 VT 32 (Dooley, J.)

 
Defendants appeal from a judgment ruling that the City of Montpelier may prohibit boating, fishing, and swimming in Berlin Pond, a public body of water located outside the City and used as the City’s drinking water supply.  The City contends that the restrictions are supported by both a state health order and the powers granted to the City by the State.  The trial court issued a permanent injunction preventing defendants from engaging in the listed recreational activities and from trespassing upon land surrounding the pond that is owned by the City.   We reverse the part of the judgment enjoining defendants from boating, fishing, and swimming in Berlin Pond.

Berlin Pond is a natural body of water, roughly two miles long and covering approximately 256 acres.  Berlin Pond has supplied Montpelier with a gravity-fed water supply since 1884. Over the years, the City has acquired almost all the land surrounding the pond.  The only exception is an eighty-five-foot access strip that is owned by the Town of Berlin.  The City has placed “no trespassing” signs around Berlin Pond and has posted the land around it against hunting and fishing.  The City has has passed an ordinance aimed at protecting the water supply.

On September 6, 2009, Cedric and Leslie Sanborn ventured out on Berlin Pond in kayaks.  The Montpelier Police Department arrested them and charged them with violation of Montpelier’s  ordinance against misusing a reservoir; and violation of Montpelier’s ordinance prohibiting trespassing on city property or resources.  A few months later, Barnett obtained a permit to hold an ice fishing derby on Berlin Pond.  These events prompted the City of Montpelier to initiate the present action against the defendants seeking a declaratory judgment that boating, fishing, and bathing is prohibited

We first reject defendant’s argument that the trial court erred in dismissing the State as a party. The State was properly joined as a necessary party defendant under Rule 19(a), because the State has an interest in Berlin Pond as public trustee, and protection of that interest might have been impaired in its absence by a decision in favor of the City. After being joined, the State refused to align its interests with either party, essentially avowing to the court that it did not have an interest that would be jeopardized by deciding this case in its absence.  This removed the basis for Rule 19 joinder, so there was no error in dismissing the State.

Montpelier does not “own” Berlin pond; it owns most of the land surrounding the pond and has a right to take water from the pond.    Both the public trust doctrine and Dillon’s Rule support the proposition that the City of Montpelier cannot regulate the use of Berlin Pond unless its authority derives from the State—as both trustee over public waters and as the source of municipal powers generally.

Since 1777 the Vermont Constitution has recognized the public trust doctrine:

The inhabitants of this State shall have liberty in seasonable times, ... to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly.

Vt. Const. ch. II, § 67 A municipality may assume the state’s authority to regulate public waters consistent with the public trust, but only where that authority has been conveyed to the municipality by the state.

The City makes two arguments to show that the State has authorized a prohibition on activities in and around Berlin Pond.  The first relies on a 1926 order by the state Board of Health that prohibited boating, fishing, and bathing in Berlin Pond.  The City contends that the content of this order is still in force today.  We reject this argument.  Although there clearly was for many years a state health order prohibiting recreational use of Berlin Pond, that order is no longer valid and has not been implicitly adopted by ANR.

Second, the City argues that the State granted it the power to regulate Berlin Pond when it ratified the city charter and that therefore its regulation is a proper exercise of delegated authority.   After careful examination of the state statutes and the City’s charter, we are unable to find any direct or indirect authorization for the City to regulate recreational use of Berlin Pond.  On the contrary, the State has developed its own regulatory schemes to govern both public water sources and recreational use of public waters.  Under neither of these schemes has the State prohibited the recreational uses at issue here.  

Our opinion today does not hold that recreational use of Berlin Pond must be permitted. Our decision reflects the fact that, under the laws of this state, the recreational use of Berlin Pond is a matter of state concern requiring a resolution at the state level. Cf. Cent. Vt. Ry., 153 Vt. at 346, 571 A.2d at 1132 ("[T]he state's power to supervise trust property in perpetuity is coupled with the ineluctable duty to exercise this power."). We determine only that the City's current powers are limited to preventing trespass upon its property.  We conclude only that valid regulation would require action by the State—either by direct regulation or by delegating such power to the City—and this has not yet occurred.