A Vermont judge has ruled that the Panton dairy farmers who lost a high-profile case about farm runoff last year are in contempt of court for failing to divert the large volume of water flowing into their neighbor’s property and Lake Champlain.
The three Vorsteveld brothers, who own and operate the dairy farm bordering the lake, told the court they have been considering costly and logistically complex solutions, according to the judge’s decision.
Still, the farmers have not been quick to investigate those solutions, Judge Mary Teachout wrote, stating that they “did not begin to develop compliance plans” until last month’s contempt hearing in Addison County Superior Court “was imminent.”
Both parties — the Vorstevelds and their neighbors, the Hoppers, who brought the lawsuit in 2020 — have agreed to engage in mediation and to form a plan for the farm within the next four months, according to the decision, which Teachout issued on Jan. 5.
After that time, the Hoppers could be entitled to attorney fees. The judge did not apply any other sanctions to the Vorstevelds.
Attorney Claudine Safar, who represents brothers Hans, Gerard and Rudy Vorsteveld, said she and her clients were “hopeful that the parties will be able to come to some kind of an agreement.”
Teachout’s original decision in March 2022, which followed a six-day trial that wrapped two months earlier, required the farmers to stop the runoff, but it did not tell the farmers how they could or should halt the flow of water. The runoff largely comes from the farm’s tile drains, a network of perforated underground pipes that carry water away from the farm fields.
Safar expressed frustration about the court’s decision in an interview on Tuesday. The farmers cannot “go over to a garden hose and just simply turn the spigot,” she said.
“I don’t know what the court thinks we’re going to do with all of this water,” she said.
Prior to the lawsuit, the farmers had installed hundreds of miles of tile drains, Safar said. In her ruling, Teachout wrote that testimony from hydrology experts found that it would cost $10,000 an acre — a total of $2.5 million to $3 million — to remove the drains, and doing so could “result in negative effects to soil and water on the lands of both parties.”
Joshua Faulkner, an agricultural hydrologist and director of the Environmental Testing Laboratory at the University of Vermont, has been working with the Vorstevelds, experimenting on the farm with a tool that could regulate and slow the flow of the water coming off the tile drains. The farmers contacted Faulkner in July, the same month that the court granted the Hoppers a contempt hearing, according to the decision.
The tool is typically used in the Midwest, the decision states, so Faulkner must retrofit the technology to fit the farm’s sloping land. He installed a flow regulator in late October at one of the tile drainage system’s 15 or 16 outlets, Teachout wrote.
“There is no data from this experiment yet, and he estimates that it will take at least a year to obtain results,” the decision states. “(Faulkner) acknowledged that any effect could only affect a portion of the tiled farm fields because of the grade of the sloping land.”
While the Vorstevelds face challenging decisions about the farm’s next steps, Teachout wrote that the farmers had not invested a significant effort into complying with the orders.
“The steps taken so far toward compliance are only preliminary and would not have occurred at all without the filing of the Motion for Contempt and Enforcement and a court hearing on the motion,” she wrote.
The farmers claimed an “inability to comply,” Teachout wrote. “This has also not been proved by clear and convincing evidence, or even a preponderance of the evidence.”
Rather, the evidence consists largely of the Vorstevelds’ “opinion that removal of the tile drains or trucking the water away would be expensive,” but the farmers have not provided enough evidence to prove their inability to pay for these potential solutions, she wrote.
On behalf of the Vorstevelds, Safar tried to appeal the court’s 2022 decision, but missed the deadline. She told the state Supreme Court justices that the court’s directions had been confusing, and that her attempt to file an electronic appeal was rejected by the court’s online filing system.
Safar has filed a different motion for relief, which is currently pending before the Supreme Court.
