Volume 159 — Vermont Reports

<bold>1. Native Americans — Aboriginal Title — Generally</bold> Aboriginal title gives members of a viable Native American tribe right of occupancy to lands that is protected against claims by anyone else unless the tribe abandons the lands or the sovereign extinguishes the right. <bold>2. Native Americans — Aboriginal Title — Generally</bold> Native Americans' aboriginal title arises from a tribe's occupation of a definable, ancestral homeland before the onset of European colonization. <bold>3. Native Americans — Aboriginal Title — Requirements</bold> For Native American tribe to have aboriginal title to its ancestral homeland, its occupation of the land must have been exclusive of occupation by other tribes. <bold>4. Native Americans — Aboriginal Title — Requirements</bold> Validity of aboriginal title is not dependent on treaty, statute, or other formal governmental recognition, but group making a claim under the doctrine must present sufficient proof that they have constituted a tribe throughout relevant history and have never voluntarily abandoned their tribal status. <bold>5. Native Americans — Aboriginal Title — Generally</bold> Sovereign's transfer of aboriginal land is subject to continuing Indian rights of occupancy and use, until those underlying rights are extinguished. <bold>6. Native Americans — Aboriginal Title — Generally</bold> Where terms of aboriginal land grant do not rise to the level of extinguishment of aboriginal title, or where there has been no action by sovereign demonstrating an intent to extinguish, grant of land conveys only an inchoate interest in the land. <bold>7. Native Americans — Aboriginal Title — Extinguishment</bold> Aboriginal title may be abolished, or extinguished, causing Native Americans to lose their right of occupancy and use, and vesting fee simple absolute in either sovereign or a third party. <bold>8. Native Americans — Aboriginal Title — Extinguishment</bold> Aboriginal title may be taken without compensation. <bold>9. Native Americans — Aboriginal Title — Extinguishment</bold> Extinguishment of aboriginal title by force is valid.<page_number>Page 103</page_number> <bold>10. Native Americans — Aboriginal Title — Extinguishment</bold> Extinguishment of aboriginal title is irrevocable. <bold>11. Native Americans — Aboriginal Title — Extinguishment</bold> Federal government has exclusive right to extinguish aboriginal title. <bold>12. Native Americans — Aboriginal Title — Extinguishment</bold> Sovereign intent to extinguish aboriginal title need not be express, but there must be evidence that demonstrates a plain and unambiguous intent to extinguish exclusive aboriginal rights. <bold>13. Native Americans — Aboriginal Title — Extinguishment</bold> Because of federal policy to respect Indian rights of occupancy, intent to extinguish aboriginal title will not be lightly implied. <bold>14. Native Americans — Aboriginal Title — Extinguishment</bold> Historical event, although insufficient by itself to establish extinguishment of aboriginal title, may contribute to finding of extinguishment when analyzed together with other events. <bold>15. Native Americans — Aboriginal Title — Extinguishment</bold> Century-long course of conduct may demonstrate extinguishment of aboriginal title, even though exact date on which title is extinguished is difficult to determine. <bold>16. Native Americans — Aboriginal Title — Extinguishment</bold> Extinguishment of Abenaki aboriginal title to lands in northwest Vermont was complete by 1791, when Vermont became the fourteenth state. <bold>17. Native Americans — Aboriginal Title — Extinguishment</bold> Non-Indian encroachment causing Indian withdrawal is not, in itself, effective to extinguish aboriginal rights. <bold>18. Native Americans — Aboriginal Title — Extinguishment</bold> White settlement is evidence of intent to extinguish aboriginal rights by assertion of dominion over the area. <bold>19. Native Americans — Aboriginal Title — Extinguishment</bold> Claims that Abenakis never voluntarily abandoned area of northwest Vermont and that they were never completely removed have no effect on finding of intent to assert complete control over the area in a manner adverse to Abenakis. <bold>20. Native Americans — Aboriginal Title — Extinguishment</bold> Even if colonial grantees initially held only "naked fee" to land occupied by Abenakis, their reversionary interest vested in 1791, and any question of ambiguity was resolved by act of Congress admitting Vermont as the fourteenth state. <bold>21. Native Americans — Aboriginal Title — Extinguishment</bold> Tumultuous political context preceding Vermont's statehood does not preclude finding of extinguishment of Abenaki's aboriginal title to land in northwest Vermont.

<bold>1. Zoning and Planning — Generally — Exceptions, Variances and</bold> <bold>Nonconforming Uses</bold> Building containing three one-bedroom apartments and retail store did not comply with zoning requirements; lot should not have been developed<page_number>Page 126</page_number> because it did not meet state and town minimum lot size requirements; building was a nonconforming structure because it did not meet town requirements as to lot size, lot coverage and setback specifications and should not have been developed in a way that increased its noncompliance with zoning regulations. <cross_reference>24 V.S.A. § 4406</cross_reference>(1). <bold>2. Mandamus — Generally — Requisites</bold> For court to issue writ of mandamus, petitioner must have clear and certain right to action sought by request for writ, writ must be for enforcement of ministerial duties, but not for review of performance of official acts that involve exercise of official's judgment or discretion, and there must be no other adequate remedy at law. <bold>3. Mandamus — Generally — Requisites</bold> Petitioners, adjacent landowners and interested persons, were entitled to writ of mandamus to compel town zoning administrator to enjoin property owners from using their property in violation of town zoning regulations; since property had been developed in violation of superior court order, state law, and town zoning regulations, petitioners were affected by violations and entitled to action sought in writ, writ sought enforcement of ministerial duties, and there was no other adequate remedy at law. 24 V.S.A. §§ 4442(a), 4445. <bold>4. Zoning and Planning — Administration and Enforcement —</bold> <bold>Discretion</bold> Town zoning administrator had no discretion as to whether to enforce zoning regulations. <cross_reference>24 V.S.A. § 4442</cross_reference>(a). <bold>5. Mandamus — Generally — Adequacy of Other Remedy</bold> Refusal of an official to perform nondiscretionary duties leaves petitioner without an adequate remedy at law. <bold>6. Mandamus — Subjects of Relief — Public Officers, Boards and</bold> <bold>Municipal Corporations</bold> Mandamus is proper when an official refuses to perform duty required by law. <bold>7. Mandamus — Generally — Conditions Precedent</bold> Petitioners were not required to appeal town zoning administrator's refusal to enforce town zoning regulations prior to seeking writ of mandamus where they had appealed administrator's decision to issue conditional use permit, superior court had determined that conditional use permit would violate zoning regulations and town continued to refuse to follow the law, despite court's order. 24 V.S.A. §§ 4464, 4472. <bold>8. Mandamus — Generally — Adequacy of Other Remedy</bold> Mandamus will not be refused because another remedy exists unless that remedy is clear and adequate. <bold>9. Mandamus — Generally — Adequacy of Other Remedy</bold> Where petitioners had taken every lawful step they could to enforce adherence to town zoning regulations and town refused to abide by court order and its own zoning regulations, statutory appeals process was not<page_number>Page 127</page_number> adequate to afford relief petitioners sought and mandamus was appropriate. 24 V.S.A. §§ 4464, 4472.

<bold>1. Attorneys — Reprimand, Suspension and Disbarment — Procedure</bold> Attorneys appearing before Professional Conduct Board on charges of violations of Code of Professional Responsibility should be accorded full measure of procedural safeguards provided by the rules. A.O. 9, Rule 8. <bold>2. Attorneys — Reprimand, Suspension and Disbarment — Procedure</bold> Inherent in rule governing Professional Conduct Board procedure is principle that respondent is entitled to knowledge of material upon which Board is acting, so that respondent has opportunity not only to refute but to supplement, explain, and give different perspective to hearer's view of case. A.O. 9, Rule 8. <bold>3. Attorneys — Reprimand, Suspension and Disbarment — Procedure</bold> Where Professional Conduct Board's adoption of second hearing panel report that had not been submitted to respondent violated rule governing Board procedure by depriving respondent of opportunity to address Board concerning issues raised by subsequent findings of hearing panel and placed evidentiary issues before supreme court that should have been addressed by Board, matter would be remanded to provide respondent with opportunity to address second panel report. A.O. 9, Rule 8. <bold>4. Attorneys — Reprimand, Suspension and Disbarment — Procedure</bold> Due process, in attorney discipline context as elsewhere, requires notice that an act is punishable at time it is committed. <bold>5. Attorneys — Code of Professional Responsibility —</bold> <bold>Disciplinary Rules</bold> Application of attorney disciplinary rule to prohibit contact between plaintiffs' lawyers and insurance company adjusters does not violate due process, even if such contact is common and accepted practice by Vermont attorneys. Code of Prof. Resp. DR 7-104(A). <bold>6. Attorneys — Code of Professional Responsibility —</bold> <bold>Disciplinary Rules</bold> Attorney disciplinary rule prohibiting communication with adverse party known to be represented by counsel applies to all transactions for which lawyers are hired and cannot be construed to imply that its application is limited to cases where suit is filed. Code of Prof. Resp. DR 7-104(A). <bold>7. Attorneys — Code of Professional Responsibility —</bold> <bold>Disciplinary Rules</bold> Attorney disciplinary rule prohibiting communication with adverse party known to be represented by counsel interposes no meaningful obstacle to direct settlement negotiation between plaintiffs' attorneys and insurance adjusters. Code of Prof. Resp. DR 7-104(A). <bold>8. Attorneys — Code of Professional Responsibility —</bold> <bold>Disciplinary Rules</bold> Attorney disciplinary rule prohibiting communication with adverse party known to be represented by counsel provides no exception for contacts<page_number>Page 156</page_number> with insurance companies for purposes of preserving bad faith settlement claims; such claims must and can be pursued through defense counsel in absence of consent to communicate directly with insurance company. Code of Prof. Resp. DR 7-104(A).

<bold>1. Judgments — Summary Judgment — Resolution of Doubt Against</bold> <bold>Moving Party</bold> On motion for summary judgment, nonmoving party is entitled to benefit of all reasonable doubts and inferences in determining whether genuine issue of material fact exists. V.R.C.P. 56(c). <bold>2. Zoning and Planning — Statutes — Existing Small Lots</bold> Mere creation of separate nonconforming lot prior to effective date of zoning will not confer existing small lot protection where lot is contiguous to property in affiliated ownership and contiguous lots are functionally one property. <cross_reference>24 V.S.A. § 4406</cross_reference>(1). <bold>3. Zoning and Planning — Statutes — Existing Small Lots</bold> Intent of existing small lot statute is to limit nonconforming uses to uses created prior to effective date of zoning. <cross_reference>24 V.S.A. § 4406</cross_reference>(1). <bold>4. Zoning and Planning — Statutes — Existing Small Lots</bold> Although contiguity is a strong indicator that two lots should not be deemed separate within meaning of existing small lot statute, it is not the only factor. <cross_reference>24 V.S.A. § 4406</cross_reference>(1). <bold>5. Zoning and Planning — Statutes — Existing Small Lots</bold> Right-of-way which, because of location and function, effectively separates parcels that it physically connects, so they cannot be used in ordinary manner as a single lot, may render those parcels separate for purposes of existing small lot statute and conforming zoning bylaws. <cross_reference>24 V.S.A. § 4406</cross_reference>(1). <bold>6. Zoning and Planning — Statutes — Existing Small Lots</bold> Existence of right-of-way contiguous to and separating two parcels in common ownership will not automatically render those parcels separate lots for purposes of existing small lot statute and conforming zoning bylaws. <cross_reference>24 V.S.A. § 4406</cross_reference>(1). <bold>7. Zoning and Planning — Statutes — Existing Small Lots</bold> Where plaintiff owned three contiguous parcels of property, one of which was subject to a right-of-way, trial court erred in ruling that, for purposes of existing small lot statute and conforming zoning bylaw, there was no factual issue as to whether the parcels were separate; whether right-of-way effectively separated plaintiff's parcels was a question of fact for trial court. <cross_reference>24 V.S.A. § 4406</cross_reference>(1). <bold>8. Zoning and Planning — Statutes — Existing Small Lots</bold> Mere creation of lot with an odd shape does not necessarily means that two lots are not adjoining as a matter of law. <cross_reference>24 V.S.A. § 4406</cross_reference>(1).<page_number>Page 194</page_number>

<bold>1. Administrative Law — Powers of Agency — Generally</bold> Environmental Board is required to follow both standards established by Legislature and procedures which it has itself adopted in order to carry out its statutory mandate. <bold>2. Administrative Law — Administrative Interpretation of</bold> <bold>Statutes — Judicial Review</bold> Absent compelling indication of error, supreme court will sustain interpretation of statute by administrative body responsible for its execution. <bold>3. Administrative Law — Orders and Regulations — Judicial</bold> <bold>Review</bold> Absent compelling indication of error, supreme court will sustain administrative agency's interpretation of its own rules. <bold>4. Administrative Law — Judicial Review — Findings</bold> Supreme court must affirm Environmental Board decision if its findings of fact are based on substantial evidence. <cross_reference>10 V.S.A. § 6089</cross_reference>(c). <bold>5. Administrative Law — Judicial Review — Conclusions of Law</bold> Environmental Board's conclusions are affirmed when rationally derived from its findings and based on correct interpretation of law. <bold>6. Administrative Law — Hearings — Parties</bold> Applicant for Act 250 permit failed to show that claimed error by Environmental Board in admitting parties to permit-approval proceeding prejudiced its rights, where parties did not present evidence, cross-examine applicant's witnesses, or otherwise participate in hearings. <bold>7. Administrative Law — Hearings — Parties</bold> Environmental Board did not err in admitting town as statutory party to Act 250 permit-approval proceeding where case involved impact of development on an area directly adjacent to town, Board was required to look at alternative sites owned or controlled by applicant, and alternative sites might have direct impact on town. 10 V.S.A. §§ 6084(a), 6085(c), 6086(a)(8)(A).<page_number>Page 207</page_number> <bold>8. Administrative Law — Hearings — Parties</bold> Town could have been admitted as permitted party to Act 250 permit-approval proceeding based on finding that proposed development might affect town's interests or that town's participation would materially assist Environmental Board by providing testimony, cross-examining witnesses, and/or offering other evidence relevant to statutory requirements. <cross_reference>10 V.S.A. § 6086</cross_reference>(a); Environmental Board Rule 14(B)(2). <bold>9. Administrative Law — Administrative Appeal — De Novo</bold> <bold>Proceedings</bold> In de novo proceeding, Environmental Board is required to hear matter as if there had been no prior proceedings in District Environmental Commission. <cross_reference>10 V.S.A. § 6089</cross_reference>(a). <bold>10. Administrative Law — Administrative Appeal — Issues</bold> <bold>Considered</bold> Where notice of appeal from denial of Act 250 permit for construction of pond generally attacked District Environmental Commission's findings and conclusions that applicant's project would significantly impair necessary wildlife habitat, Environmental Board did not err in considering effect pond development would have on habitat necessary to survival of a population of black bears. <cross_reference>10 V.S.A. § 6086</cross_reference>(a)(8)(A). <bold>11. Environment and Natural Resources — Environmental</bold> <bold>Protection — Permits</bold> On review of Act 250 permit application, destruction or significant imperilment of habitat of a population of wildlife triggers statutorily necessary wildlife habitat review, irrespective of whether species as a whole is threatened with extinction. <cross_reference>10 V.S.A. § 6086</cross_reference>(a)(8)(A). <bold>12. Environment and Natural Resources — Environmental</bold> <bold>Protection — Permits</bold> On appeal from denial of Act 250 permit for construction of pond, Environmental Board's findings supported its conclusion that proposed construction would imperil habitat necessary to survival of a population of black bears. <cross_reference>10 V.S.A. § 6086</cross_reference>(a)(8)(A).

<bold>1. Appeal and Error — Findings — Tests for Overturning</bold> Findings in post-conviction relief decision are tested by clearly erroneous standard. <cross_reference>13 V.S.A. § 7131</cross_reference>. <bold>2. Appeal and Error — Findings — Tests for Overturning</bold> Findings in post-conviction relief decision will not be disturbed if they are supported by any credible evidence, and even when evidence is conflicting, supreme court will defer to trial court's judgment. <cross_reference>13 V.S.A. § 7131</cross_reference>. <bold>3. Criminal Law — Post-Conviction Relief — Burden of Proof</bold> In order to obtain post-conviction relief, petitioner is required to establish, by a preponderance of the evidence, that fundamental errors rendered his conviction defective. <cross_reference>13 V.S.A. § 7131</cross_reference>. <bold>4. Criminal Law — Right to Effective Counsel — Burden of Proof</bold> When fundamental error claimed in petition for post-conviction relief is ineffective assistance of counsel, petitioner must first show that counsel's performance fell below an objective standard of reasonableness informed by prevailing professional norms; having met that burden, petitioner must then show reasonable probability that, but for counsel's unprofessional errors, result of proceeding would have been different. <cross_reference>13 V.S.A. § 7131</cross_reference>. <bold>5. Criminal Law — Judgment and Sentence — Setting Aside</bold> Even professionally unreasonable error by counsel does not warrant setting aside criminal judgment if error did not affect judgment. <cross_reference>13 V.S.A. § 7131</cross_reference>. <bold>6. Criminal Law — Judgment and Sentence — Setting Aside</bold> Because plea bargain stage is critical to criminal proceeding, fundamental attorney error at that stage may invalidate conviction. <cross_reference>13 V.S.A. § 7131</cross_reference>. <bold>7. Criminal Law — Right to Effective Counsel — Plea</bold> Right to counsel is violated when defense counsel fails to inform defendant of plea offer or when counsel's incompetence results in decision by defendant to proceed to trial rather than plead guilty. <bold>8. Criminal Law — Right to Effective Counsel — Plea</bold> Defense counsel has duty to communicate to client not only terms of plea bargain offer, but also its relative merits compared to client's chances of success at trial, and in so doing, must involve defendant in process of deciding whether to accept or reject proffered agreement.<page_number>Page 335</page_number> <bold>9. Criminal Law — Right to Effective Counsel — Standard of</bold> <bold>Competence</bold> Defense counsel's failure to aggressively pursue plea bargain with petitioner after petitioner rejected it did not fall below prevailing standard of reasonably competent attorney. <bold>10. Criminal Law — Right to Effective Counsel — Standard of</bold> <bold>Competence</bold> Trial attorney is not required to demonstrate highest level of expertise to effectively represent client. <bold>11. Criminal Law — Right to Effective Counsel — Prejudice</bold> Evidence did not demonstrate that defense counsel's failure to aggressively pursue plea bargain with petitioner after petitioner rejected it prejudiced petitioner's case, where it was not clear that trial court would have accepted plea bargain. <bold>12. Criminal Law — Right to Effective Counsel — Particular</bold> <bold>Cases</bold> Defense counsel's criminal convictions and disbarment which occurred after and were unrelated to petitioner's case were irrelevant to question of whether he effectively represented petitioner.

<bold>1. Insurance — Policies — Conditions</bold> Insurance policy clause, which denied uninsured motorist coverage for accidents in which insured motorists were injured while occupying vehicles they owned but had not insured, was inconsistent with Vermont law and unenforceable. <cross_reference>23 V.S.A. § 941</cross_reference>(a). <bold>2. Insurance — Policies — Conditions</bold> Vermont law does not allow insurers to condition uninsured motorist/underinsured motorist coverage on location of insured, nor on insured's status as motorist, passenger in private or public vehicle, or as pedestrian. <cross_reference>23 V.S.A. § 941</cross_reference>(a). <bold>3. Insurance — Policies — Conditions</bold> Statutory language that "no owner or operator of a motor vehicle . . . shall operate . . . the vehicle" without required insurance does not require each vehicle owned by an insured to have its own insurance, limiting in turn uninsured/underinsured motorist coverage to each individual's policy. <cross_reference>23 V.S.A. § 800</cross_reference>(a). <bold>4. Insurance — Policies — Conditions</bold> Interpolicy, antistacking insurance provisions dealing with underinsured motorists violate governing insurance statute's language and underlying purpose. <cross_reference>23 V.S.A. § 941</cross_reference>(f).