Aerie Point Holdings, LLC v. Vorsteveld Farm, LLC

VERMONT SUPREME COURT Case No. 24-AP-258
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

MAY TERM, 2025

Aerie Point Holdings, LLC v. Vorsteveld } APPEALED FROM:
Farm, LLC* }
} Superior Court, Addison Unit,
} Civil Division
} CASE NO. 72-4-20 Ancv
Trial Judge: Mary Miles Teachout
Superior Judge (Ret.), Specially Assigned

In the above-entitled cause, the Clerk will enter:

Defendant Vorsteveld Farm, LLC appeals the civil division’s order holding it in contempt
of an injunction previously issued by the court. We affirm.

This is defendant’s third appeal in this case. In 2020, plaintiff Aerie Point Holdings, LLC
sued defendant for trespass and nuisance, alleging that increased runoff from defendant’s dairy
farm had caused water, sediment, and pollution to travel onto plaintiff’s land and into Lake
Champlain. In March 2022, the civil division issued a decision concluding that plaintiff had
proved its claims and was entitled to injunctive relief. It enjoined defendant “from allowing
water, and any particles it carries, from flowing from the discharge points of [d]efendant’s drain
tile system into the public ditches and culverts westerly of [d]efendant’s land on Arnold Bay
Road between Adams Ferry Road and Pease Road.” Defendant did not timely appeal the final
judgment. See Aerie Point Holdings LLC v. Vorsteveld Farm LLC, No. 22-AP-279, 2023 WL
2867097, at *4 (Vt. Apr. 7, 2023) (unpub. mem.) [https://perma.cc/UH7G-BWPZ].

In June 2023, plaintiff moved to hold defendant in contempt for failing to comply with
the injunction. While that motion was pending, in August 2023, defendant moved for relief from
judgment under Vermont Rule of Civil Procedure 60(b). The trial court denied defendant’s Rule
60(b) motion, and we affirmed. Aerie Point Holdings, LLC v. Vorsteveld Farm, LLC, 2024 VT
29, ¶ 1.
The court held a multi-day hearing on plaintiff’s contempt motion in December 2023. In
January 2024, it issued an order finding defendant in contempt of the injunction. The court
found that defendant took no specific action to comply with the injunction from the time it was
issued through April 2023, when this Court issued its decision in the first appeal, even though
defendant did not seek to stay the injunction. Meanwhile, defendant spent $700,000 to purchase
additional acreage. In August 2023, defendant hired an engineer to begin addressing the
injunction requirements. In October 2023, defendant installed an experimental flow regulator on
one of the fifteen to sixteen discharge outlets from the tile drainage system. It would take a year
to obtain results and the flow regulator by itself was unlikely to sufficiently prevent continued
erosion and deposits of phosphorus and sediment on plaintiff’s land. Defendant did not seriously
investigate options for diverting water from the discharge outlets for other uses until a few days
before the December 2023 contempt hearing, when it began to develop plans for compliance.
The court rejected defendant’s argument that it was in compliance because it did not discharge
water from the tile drain outlets directly into the ditch along Arnold Bay Road. The court
explained that “the water from the tile drain outlets drains into the two streambeds, which carry it
to the ditch and through the culverts under Arnold Bay Road in such a manner that its volume
and velocity as it moves through the streambeds to Lake Champlain on [plaintiff’s] land cause
the harm described in” the merits decision.

The court concluded that plaintiff had shown by clear and convincing evidence that
defendant knew what the injunction required but failed to act. It found that defendant had not
complied with the injunction and had not proven that it was unable to comply. However, the
court declined to impose sanctions at that time because the parties indicated that they were
willing to mediate a potential solution. It stated that if no resolution was reached by May 2024,
plaintiff could file a supplemental motion for sanctions. It further concluded that plaintiff was
entitled to recover attorney’s fees in connection with the motion for contempt.

Mediation proved unsuccessful, and plaintiff moved for a further hearing on the issue of
contempt, additional attorney’s fees, and coercive sanctions. The court held a hearing over four
days in July and August 2024 and conducted a site visit. In a September 2024 order, the court
found that defendant had taken some steps to reduce the rate of water discharge but still was not
in compliance with the injunction, as it had not acted to either capture or remove the water as it
emerged from the tile drain discharge outlets or before it reached the ditch. The court noted that
since the injunction was issued, defendant had spent $1.1 million to purchase additional land and
an expensive new planter. The court concluded that unless defendant faced significant economic
pressure, it would avoid full compliance. The court ordered defendant to pay $1000 per day for
each day that it was out of compliance, beginning in November 2024. Defendant appealed.

To prevail on a motion for contempt, a plaintiff must prove by clear and convincing
evidence that there was a court order that required specific action and that the defendant had
actual knowledge of the order and failed to comply. Vt. Women’s Health Ctr. v. Operation
Rescue, 159 Vt. 141, 146 (1992). “[I]f the contemnor alleges that his compliance either with the
original order or the purgative conditions is impossible, it is his burden to establish the facts
necessary to justify the failure to comply.” Spabile v. Hunt, 134 Vt. 332, 335 (1976). “[W]e will
not disturb the judgment unless the court’s discretion was entirely withheld or was exercised on
grounds clearly untenable.” Vt. Women’s Health Ctr., 159 Vt. at 147 (quotation omitted). We
will affirm the court’s factual findings if supported by substantial evidence, even if there is
contradictory evidence in the record. Id.
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On appeal, defendant argues that the trial court impermissibly expanded the scope of the
injunction in the contempt orders by requiring defendant to stop all water from exiting the tile
drains. Defendant argues that the contempt orders are inconsistent with the trial court’s finding
in the merits order that it is the discharge of excess water that causes harm to plaintiff’s land.
Defendant argues that the injunction was intended only to prohibit “excess” water and did not
require defendant to stop the natural pre-existing water flow downslope from its land.

Defendant’s claims lack merit. The injunction enjoins defendant from allowing water
from the tile drains to enter the public ditches that carry water onto plaintiff’s land. This plainly
means any water from the tile drains. The trial court’s contempt order is consistent with the
language of the injunction and does not expand its scope. It is also consistent with the merits
decision, which read as a whole makes clear that the water from the tile drains is the “excess”
water the injunction seeks to prohibit.* Contrary to defendant’s assertion, the court did not
require defendant to dispose of all surface runoff from town roads, overland flow, and public
ditches; it merely observed that if defendant did not stop the water at the discharge outlets, but
further downhill, the tile drain water would be mixed with some surface runoff and all of it
would have to be removed to ensure that the tile drain water did not reach the public ditch. This
was a rational observation and is consistent with the injunction.

Defendant further claims that the court erred in finding that defendant had actual
knowledge of what the injunction required. We disagree. Hans Vorsteveld, one of defendant’s
owners, stated in a July 2023 affidavit that “I am aware of this court’s August 2022 order that
requires Vorsteveld Farm . . . to prevent water from our tile drains from reaching the ditch along
Arnold Bay Road.” Gerald Vorsteveld, another owner, testified at the December 2023 hearing
that “[t]he injunction, I thought, pretty much said that you can’t let the tile water go into the town
ditches and in the culverts . . . across Arnold Bay Road.” These statements support the court’s
finding that defendant’s owners were aware of what the injunction required.

While defendant claimed to be confused about what was actually required because of the
court’s shifting interpretations, the trial court did not find this to be credible. It found that
defendant had chosen to misinterpret the injunction in a way that would absolve it of having to
comply. This finding is supported by the record, which shows that defendant has repeatedly
asserted that the injunction is unenforceable because it required defendant to stop “all” water—
not just the water from the tile drains—from exiting defendant’s property and entering plaintiff’s
property. This Court rejected that argument in our decision in defendant’s second appeal,
explaining that “[defendant] was on notice that the court had proposed only to enjoin water from
the tile-drain discharge points from reaching [plaintiff], not all water from [defendant]’s land, as

*
In the merits decision, the trial court found that defendant had disposed of wastewater
from its agricultural activities by sending it through the culverts under Arnold Bay Road to flow
onto plaintiff’s land. “The amount and velocity of the disposal is in excess of the preexisting
level of natural drainage from the upgradient Vorsteveld Farm land. The natural level was
established during several years prior to 2014 and continued until 2017.” The court
acknowledged that climate change may have exacerbated the effect by contributing extra water,
but found “significant evidence from multiple sources that the majority of the excess water
comes from the Vorsteveld Farm tile drainage system.” The court went on to find that “the
excess water that flows across Aerie Point land carries with it sediment in excess of the amount
that would be carried by natural intermittent drainage from spring thaws and heavy rains.”
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it contends on appeal.” Aerie Point Holdings, LLC, 2024 VT 29, ¶ 15. We noted that in
fashioning the injunction the trial court had specifically rejected plaintiff’s proposal that
defendant be enjoined from allowing “all” water to flow onto plaintiff’s land, and instead
focused solely on the water from the tile drains. Id. ¶ 16 n.3. Despite the plain language of the
injunction itself and these clear statements, defendant’s mitigation measures were deliberately
designed to reduce only ten percent of the flow from the tile drains—i.e., the portion that
defendant unilaterally decided was “excess.”

Defendant also argues that the court erred in finding that it failed to comply with the
order. It argues that the court did not give adequate consideration to evidence that rainfall had
dramatically increased since the injunction was issued, that the sediment flowing onto plaintiff’s
land is likely from the dirt roads and not defendant’s fields, that the culvert on plaintiff’s land is
probably blocked, and that defendant had reduced runoff from the tile drains by installing stone
interceptors and “silt sox” and maintaining grass buffer strips in certain locations on its fields.

The trial court’s order belies defendant’s claim, as it expressly or implicitly considered all
of the evidence cited by defendant. The court found, however, that “the effect of the tile drain
discharges on [plaintiff’s] land is essentially unchanged” because there continued to be high-
velocity flows of brown, murky, and sometimes foamy water across plaintiff’s land after every
rain event. While defendant’s mitigation steps may have reduced sediment and phosphorus and
possibly slowed the rate of the water flow, all of the water continued to flow out of the tile
drains, into the ditch, and onto plaintiff’s land. The evidence—which included testimony and
photo and video evidence presented by plaintiff’s owners, the trial court’s own observations, and
defendant’s engineer’s statement that his proposed measures were only designed to divert ten
percent of the water from the tile—supports the court’s findings, which in turn support its
conclusion that defendant was not in compliance with the plain terms of the injunction.

Defendant argues that there was no evidence presented at the contempt hearing to support
the court’s statement that the water from the tile drains contains phosphorus and sediment. The
trial court previously found based on expert testimony presented at the merits hearing that the
brown, murky water discharged during rain events contained phosphorus and sediment across
plaintiff’s land. The trial court observed clear water exiting some of the upslope tile drains
during its site visit and acknowledged that Gerald Vorsteveld drank some of the water and
testified that he did not get sick. However, defendant’s engineer admitted that clear water may
still contain particles, and the court found that by the time the water got to the ditch during rain
events it was brown, murky, and sometimes foamy. The court also considered the water tests
conducted by defendant’s engineer in July 2024, which showed that phosphorus and sediment
levels were low. The court found that because the tests were conducted a week after the last
rainfall, the test results were insufficient to prove that the water discharged during rain events no
longer carried phosphorus and sediment onto plaintiff’s land. Given its previous findings in the
merits order, the court could rationally infer from the evidence presented that the tile water
discharge during rain events continued to contain phosphorus and sediment. See State v.
Durenleau, 163 Vt. 8, 12 (1994) (“In assessing circumstantial evidence, the fact-finder may draw
rational inferences to determine whether disputed ultimate facts occurred.”); Lanfear v.
Ruggerio, 2020 VT 84, ¶ 22, 213 Vt. 322 (explaining that we leave it to “sound discretion” of
trial court “to determine the credibility of the witnesses and to weigh the evidence” (quotation
omitted)).

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We have considered all of defendant’s arguments and conclude that they lack merit. The
trial court acted within its discretion in holding defendant in contempt of the 2022 injunction.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

Timothy B. Tomasi, Superior Judge,
Specially Assigned

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