Updated on April 24 at 10:04 a.m.
The Vorstevelds, a farming family in Panton, missed a deadline to appeal a superior court decision that will likely require significant changes to their operation.
While the farmers intended to appeal, their attorney told the Vermont Supreme Court that the “process was extremely confusing,” and their attempt to do so electronically was rejected by the court’s online filing system.
The lower court denied the Vorsteveld attorney’s request for an extension, and the Supreme Court agreed with the lower court’s decision earlier this month.
Superior Court Judge Mary Teachout issued the decision in March 2022. In the high-profile case, the Hopper family, who lives next door to the Vorstevelds, alleged that the Panton farmers were sending a large amount of agricultural runoff through their property and into Lake Champlain, and that the farming practices were creating a noxious odor.
Brothers Hans, Gerard and Rudy Vorsteveld operate a large dairy farm where they milk between 1,200 and 1,500 cows, according to court records.
The Hoppers are a farming family who spend summers in Vermont and the remainder of the year in Texas.
The Hoppers and the Vorstevelds, along with neighbors, scientists, staff at UVM Extension and others took the stand during a five-day trial in December 2021 and January 2022. Attorneys did not debate whether the runoff was taking place but rather whether the Vorstevelds should change their practices to mitigate the flow.
Teachout ruled that the Hoppers were entitled to relief from the runoff and odors, but did not specify what actions the Vorstevelds would need to take. Instead, she ordered attorneys to submit language to assist her in issuing another order that would instruct the farmers how to proceed.
In August 2022, she issued that final order. The Vorstevelds, it said, were prohibited from “allowing water, and any particles it carries, from flowing from the discharge points of Defendant’s drain tile system into the public ditches and culverts” that lead to the Hoppers’ property.
The Vorstevelds have installed a tile drain system — a network of perforated underground pipes that carry the water away from the field — according to court records. Teachout ruled that the tile drains were causing more runoff to flow through the neighbors’ fields than before. The Vorstevelds and others testified that removing the system would be a slow, arduous and expensive process. The Vorstevelds may need to remove the system as a result of the order.
A call to the Vorsteveld farm Tuesday afternoon went unanswered, and Claudine Safar, the attorney representing the Vorstevelds, said she was not available to comment on the Supreme Court’s decision.
Hans Vorsteveld testified before the court that some management practices suggested during testimony “wouldn’t pay the bills.”
Teachout’s August ruling also prohibited the farmers “from permitting gases with a noxious odor” to “travel from any of its manure pits downgradient and settle and remain on Plaintiff’s land for more than an hour.”
Safar argued before Supreme Court justices earlier this month that she did not think Teachout’s August order was final because the court simultaneously asked the Vorstevelds to send the Hoppers’ attorney new information related to the odors.
“The court accepted that information, and we received no notice whatsoever that the court was considering the matter closed,” Safar said.
She also submitted a motion asking the court for clarity, but the court still denied her motion for an extension for the appeal deadline.
“It’s intellectually inconsistent to, on one hand, acknowledge that there is a very clear confusion with the orders of the court, and at the same time, deny our motion for an extension of time to file,” she said.
The Vorstevelds have intended to appeal the case “since the very beginning,” she told the justices.
In her rebuttal, Merrill Bent, the attorney for the Hoppers, argued that Safar’s notice of appeal was filed six days after the deadline.
“Assuming for the sake of argument that the two orders are confusing, how that was handled was entirely in the appellant’s control,” Bent told judges. Safar could have sought clarity from the court and filed a notice of appeal sooner, Bent said.
