The Shelburne town government has used up the $20,000 donated by the Vermont Natural Resources Council in January to appeal a federal court ruling, and there is still no date for legal arguments to be heard in New York City.
Town Manager Joe Colangelo said Shelburne has received a $27,130 legal bill from its law firm, Monaghan Safar Ducham, for services from Jan. 2 to Feb. 28, with a notation: “Fee capped at $17,500 for this matter.”
The Shelburne Selectboard is paying the remaining $2,500 to Burlington lawyer Ritchie Berger of Dinse Knapp & McAndrew to evaluate the chances for a successful appeal to the U.S. Second Circuit Court of Appeals in New York, Colangelo said.
Colangelo said there was a wish to have Berger, who lives in Shelburne, to look at the appeal because of his experience with the circuit court and a desire for a new set of eyes on the case, which began more than two years ago.
Attempts by the Shelburne News to find the authorization in selectboard meeting minutes to seek a second legal review were unsuccessful.
Senior Federal Judge William K. Sessions III ruled in December that a new Shelburne ordinance regulating hazardous materials storage, handling and distribution did not apply to a state-of-the-art salt storage facility Vermont Railway has constructed north of the village.
The $5.5 million facility stores road salt that arrives by railcar, and the product is eventually trucked to municipal and state highway garages all over northern Vermont.
The judge imposed a permanent injunction against applying the hazardous materials ordinance against the railway, noting the ordinance must be struck “because 1) it discriminates against the railway and 2) the significant burden it places on the railway outweighs the town’s inconclusive and overstated public health and safety concerns.”
Sessions wrote the railway “has suffered an irreparable injury” and remedies such as monetary damages will not suffice. The balance of the hardships tilt in favor of the railway “and the public interest is not disserved by a permanent injunction,” he said in the 30-page decision.
After a two-hour closed-door selectboard meeting Jan. 2, then-Chairman Gary von Stange and two other members, Dr. Colleen Parker and Jaime Heins, voted to accept the $20,000 from the Vermont Natural Resources Council, a nonprofit environmental advocacy organization based in Montpelier. Town Attorney Claudine Safar was directed to file the appeal once Shelburne had the check in hand.
Vice Chairman Jerry Storey voted against the appeal. The fifth board member, Dr. Josh Dein, did not participate in the session, but has expressed concern about the rush in adopting the ordinance and singling out the Vermont Railway.
Hearing in Gotham
There is no date for legal arguments to be made to the three-judge panel in New York City, but officials hope to have a final ruling in the fall.
The town of Shelburne filed its notice of appeal Jan. 19 and submitted its legal brief March 2. Safar did not respond to the Shelburne News request for comment.
Vermont Railway has until June 1 to file its written response, according to records at the federal appeals court in New York City, and then Shelburne will have the right to file a response to that legal brief.
The Railway could request a chance to respond to the second filing by Shelburne if there is a new case or new information cited in the town’s appeal, according to Burlington lawyer Marc Heath of Downs Rachlin Martin, which represents the railroad.
At some point, lawyers from both sides will travel to New York City to present oral arguments to a three-judge panel. The judges are under no specific timetable for a ruling.
The losing party would have the right to petition the court for a rehearing before nine of the judges on the court. The appeals court could also send the case back for more hearings in Vermont.
The losing party could try to appeal to the U.S. Supreme Court, but a very small percentage of cases are accepted by the high court.
The case has cost Shelburne taxpayers more than $400,000 — much of it unbudgeted. The town remains deeply divided on the issue, but the selectboard has said no more tax dollars will be spent on the case.
The initial thought was the $20,000 donation by the Vermont Natural Resources Council would cover the appeal.
The lawyers at Monaghan Safar Ducham said they would cap their costs at $20,000, but after about three months that money is gone.
The $2,500 assistance from Dinse Knapp & McAndrew included help reviewing the final legal brief. Berger also will assist Monaghan Safar Ducham with a critique for a mock oral argument in preparation for the real oral argument in New York City, according to a Jan. 3 letter signed by Safar.
Safar petitioned the court in New York to allow Shelburne to exceed the 14,000-word limit under the rules for federal appeals.
“A principal brief of up to 16,000 words is reasonable here because the factual, procedural and legal issues presented in this appeal will require significant discussion and briefing,” Safar wrote.
Safar wrote she expects the case will set a precedent when it comes to railroads and pre-emption law in local communities and could have a nationwide impact.
Safar said she asked the railway to agree to give the town an extra 2,000 words, but it declined.
Appeals Judge Debra Ann Livingston split the difference, allowing the town to have up to 15,000 words for the brief.