In re Killington Ltd

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 90-535


 In re Killington, Ltd. and                   Supreme Court
 International Paper Realty Corp.
                                              On Appeal from
                                              Environmental Board

                                              May Term, 1992



 Jan S. Eastman, Acting Chair

 Allan R. Keyes and John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland,
   for appellant Killington, Ltd.

 Robert E. Woolmington of Witten, Saltonstall & Woolmington, P.C.,
   Bennington, for appellees Town of Shrewsbury and Shrewsbury Planning
 Commission

 Jeffrey L. Amestoy, Attorney General, and Mark J. DiStefano, Assistant
   Attorney General, Montpelier, for appellee Vermont Agency of Natural
   Resources



 PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
           Specially Assigned



      DOOLEY, J.  The Vermont Environmental Board denied an Act 250 permit
 to Killington, Ltd., for construction of a pond intended to enhance
 Killington's snowmaking capacity at its ski area.  Killington appeals that
 ruling, which was based on the Board's conclusion that the proposed
 construction would not satisfy 10 V.S.A. { 6086(a)(8)(A) because it would
 imperil a habitat necessary to the survival of a population of black bears.
 We affirm.
      Application for the permit was filed on February 18, 1986, with
 District Environmental Commission No. 1.  The application sought approval to
 divert the waters of Madden Brook to build a snowmaking pond in an area
 known as Parker's Gore East in the Town of Mendon.  After extensive hearings
 and procedural maneuvering, the district commission denied the application
 on July 14, 1987.  The Commission found that construction of the pond would
 threaten a population of black bears by making inaccessible a stand of beech
 trees used by the bears for food.  The Commission also found that the
 construction would prevent the bears from using a tract of spruce and fir
 to travel into Parker's Gore East, where they build up body fat in the fall
 in preparation for winter hibernation.
      Pursuant to 10 V.S.A. { 6089(a), Killington appealed the Commission's
 denial to the Environmental Board on August 13, 1987.  The appeal
 challenged the Commission's decisions to grant party status to certain
 organizations and municipalities and to impose conditions on any permit that
 might be issued.  Its fundamental challenge, however, was to the conclusion,
 under 10 V.S.A. { 6086(a)(8)(A) (hereinafter criterion 8(A)), that the
 project would significantly impair necessary wildlife habitat, would not
 utilize all feasible and reasonable means of lessening the alleged
 impairment, and would be a detriment to the general welfare of the public.
 Killington asserted that the Commission's findings did not support its
 conclusions and that the conclusions were based on a fundamental
 misconstruction of the term "necessary wildlife habitat" as used in the
 statute.
      Pursuant to Environmental Board Rule 14(A), and over Killington's
 objection, the Board granted party status to Two Rivers-Ottauquechee
 Regional Planning Commission and the towns and planning commissions of
 Shrewsbury and Bridgewater because they adjoined land "contiguous to the
 site of the proposed project that is owned or controlled by Killington."
 During the evidentiary stage of the Board's review, the Town of Shrewsbury
 sought to present evidence that, in addition to the harm likely to be done
 to the bears' use of the beech, spruce and fir trees, the proposed pond
 construction would also destroy wetlands in Parker's Gore East critical to
 the animals' survival.  The subject of the wetlands had not been raised by
 any party before the Commission and was not addressed in the Commission's
 findings, conclusions or order.  Over Killington's objection, the Board
 allowed the evidence to be presented because it was probative of "the
 existence of necessary bear habitat in Parker's Gore East" and the likely
 effect of pond construction and operation on that habitat, the issues raised
 by Killington's appeal.
      On May 11, 1989, the Board ruled that the term "necessary wildlife
 habitat" in criterion 8(A) covered habitat critical to the survival of the
 particular wildlife population dependent on it, and that Parker's Gore East
 constituted necessary wildlife habitat.  It also concluded that construction
 and operation of the pond would destroy or significantly impair that habitat
 in a number of respects.  On September 21, 1990, the Board issued its final
 findings.  It concluded that Killington met none of the sub-criteria of
 criterion 8(A), (FN1) which, if satisfied, allow the issuance of a permit
 regardless of the imperilment of necessary wildlife habitat.  Therefore, the
 Board also denied the permit.
      On appeal, Killington contends that (1) the Board erred in granting
 party status to the municipalities and planning commissions; (2) the Board
 erred in considering the issue of wetlands in Parker's Gore East; (3) the
 Board erred in defining "necessary wildlife habitat" for the purpose of
 criterion 8(A) to mean habitat critical to the survival of a particular
 population of wildlife, rather than to that of an entire species in Vermont;
 and (4) the Board's findings did not support its conclusions that necessary
 black bear habitat existed in Parker's Gore East and that such habitat would
 be destroyed or imperiled by the proposed project.
      It is important at the outset to emphasize the deference with which we
 treat decisions by the Environmental Board as to matters properly within its
 jurisdiction.  See In re Denio, ___ Vt. ___, ___, 608 A.2d 1166, 1171 (1992)
 (Board's decisions presumed to be "'correct, valid, and reasonable . . . and
 we will normally defer to its determinations'") (quoting Vermont State
 Colleges Faculty Federation v. Vermont State Colleges, 151 Vt. 457, 460, 561 A.2d 417, 419-20 (1989)).  The Board, of course, is required to follow both
 the standards established by the Legislature and the procedures which it has
 itself adopted in order to carry out its statutory mandate.  However,
 "'absent compelling indication of error,' we will sustain the interpretation
 of a statute by the administrative body responsible for its execution."  In
 re Duncan, 155 Vt. 402, 408, 584 A.2d 1140, 1144 (1990).  The same is true
 for an agency's interpretation of its own rules.  See Rogers v. Watson, 156
 Vt. 483, 489, 594 A.2d 409, 412 (1991).  As to findings of fact, we must
 affirm the Board if its findings are based on substantial evidence.  10
 V.S.A. { 6089(c); see Denio, ___ Vt. at ___, 608 A.2d  at 1170-71.
 Conclusions, in turn, are affirmed when "rationally derived from [the]
 findings and based on a correct interpretation of the law."  In re Southview
 Associates, 153 Vt. 171, 178, 569 A.2d 501, 504 (1989).
      Killington first argues that the Board erred in admitting parties to
 the permit-approval proceeding that were not entitled to be included.  At
 the outset, we must narrow this claim to the Town of Shrewsbury and the
 Shrewsbury Planning Commission (hereinafter Shrewsbury).  The parties to
 which Killington objects, other than Shrewsbury, did not present evidence,
 cross-examine Killington's witnesses, or otherwise participate in the
 hearings.  In order to obtain relief on appeal, Killington must show that an
 asserted error prejudiced its rights.  See Cadel v. Sherburne Corp., 139 Vt.
 134, 136, 425 A.2d 546, 547 (1980) (on appeal, burden is on appealing party
 to show that error resulted in prejudice).  It has not done so with respect
 to these parties.
      The situation is arguably different with respect to Shrewsbury.
 Shrewsbury participated in the hearings before the Board and presented
 witnesses, on whose testimony the Board relied in part regarding the
 wetlands issue.  Although we have doubts as to whether this participation
 could be the cause of a new hearing before the Board, (FN2) we will examine the
 merits of Killington's claim that the admission of Shrewsbury into the
 proceeding was improper.
      Shrewsbury petitioned the Board to be admitted either as a statutory
 party, under 10 V.S.A. {{ 6084(a), 6085(c), or as a permitted party,
 pursuant to Environmental Board Rule 14(B)(2), on the ground that such
 admission would materially assist the Board in its proceedings.  The Board
 decided that Shrewsbury was entitled by statute to party status, and so did
 not reach the issue of whether Shrewsbury should be a permitted party.
      Act 250 provides that a municipality that is required to be given
 notice of a permit application will be considered a party to the proceeding.
 10 V.S.A. { 6085(c).  Parties entitled to notice include "a municipality,
 and municipal and regional planning commissions wherein the land is located,
 and any adjacent Vermont municipality, municipal or regional planning
 commission if the land is located on a boundary."  Id. { 6084(a).
 Environmental Board Rule 14(A), which implements this statute, states that
 "if the project site is located on a boundary, any Vermont municipality
 adjacent to that border and the municipal and regional planning commissions
 for that municipality" will be statutory parties.  Killington argues that,
 under this statutory and administrative scheme, a bounding municipality must
 border directly on the land where the project site is located in order to be
 considered a statutory party.  For this proposition, Killington points to
 the specific language of Rule 14(A).  Appellees argue, and the Board held,
 that a municipality may be a statutory party if it lies adjacent to any
 portion of the land owned or controlled by the applicant that is part of
 the property on which the proposed project site will sit and is in any way
 affected by the proposed project.
      The facts on which the positions of the parties are based are not in
 dispute.  The proposed pond would lie wholly within the Town of Mendon, and
 not immediately adjacent to the Shrewsbury town line.  The area known as
 Parker's Gore East, however, is bounded on the south by the Shrewsbury town
 line.  Moreover, parts of Killington's ski area lie in Mendon along the
 Shrewsbury town line, and the purpose of the pond development is to enhance
 snowmaking throughout Killington's ski area.
      For two reasons, we do not believe that Killington has demonstrated
 reversible error in the Board's admission of Shrewsbury.  First, the
 decision on whether to admit Shrewsbury depends on the proper interpretation
 of the term "the land" as used in the statute, { 6084(a), and the
 corresponding provisions of Environmental Board Rule 14(A).  As discussed
 above, we give great weight to the interpretation of the statute, as well as
 its implementing regulations, made by the agency entrusted with its
 administration.  The Board reasoned that Killington's interpretation would
 allow a developer to reserve a narrow buffer strip between its project and
 an adjoining municipality in order to deprive the municipality of party
 status, even though the impact of the development on the municipality would
 be the same as if the buffer strip did not exist.  Although the Board's
 hypothetical is unlikely, it does point out the need to interpret the
 statute in a way that recognizes the impact on an affected municipality,
 rather than only the physical site of the development activity.  See In re
 Conway, 152 Vt. 526, 530, 567 A.2d 1145, 1147 (1989) (because the purpose of
 the notice provision is to provide notice to persons whose land is affected
 by the development, the term "adjoining properties" should be interpreted to
 give effect to that purpose).  The Board's conclusion that the statutory
 language includes more than the land to be physically altered is reasonable,
 particularly in light of the statutory scheme that gives a voice to persons
 and entities affected by development.  See In re Great Waters of America,
 Inc., 140 Vt. 105, 109, 435 A.2d 956, 959 (1981) (Legislature allowed
 adjoining landowners to be parties "to increase participation in permit
 application hearings").
      We do not have to decide whether it would be proper to consider
 Shrewsbury a statutory party in every Killington permit case.  This case
 involved the impact of a development on an area directly adjacent to
 Shrewsbury.  At least at the outset of the Board proceeding, one important
 issue was whether the proposed pond had to be viewed as a part of a larger
 development that included new ski trails in Parker's Gore East, adjacent to
 Shrewsbury.  Criterion 8(A) requires the Board to look at alternative sites
 owned or controlled by Killington that may accomplish the same purpose.
 Any of the land owned or controlled by Killington might be involved in this
 evaluation, and alternative sites might have a direct impact on Shrewsbury.
 These factors strongly support the Board's decision.
      Second, Shrewsbury could have been admitted as a permitted party.  The
 Board could have based admission on a finding that the proposed development
 "may affect [Shrewsbury's] . . . interests under any of the provisions of
 section 6086(a)" or that Shrewsbury's participation will "materially assist
 the board or commission by providing testimony, cross-examining witnesses,
 and/or offering other evidence relevant to the provisions of section
 6086(a)."  There is no doubt that Shrewsbury's participation has met these
 standards.  In fact, the Board's final decision in the proceeding is largely
 based on the impact of the pond construction on the wetland habitat, and
 this issue was introduced by Shrewsbury.  We would be reluctant to reverse
 the Board on the grounds that it erroneously admitted a municipality as a
 mandatory party where the municipality so obviously meets the standards for
 permissive intervention.
      Next, Killington claims that the Board erred in ruling that the issue
 of whether the development would destroy wetlands necessary to the survival
 of the bear population in Parker's Gore East was within the scope of the
 appeal.  Killington argues that because the issue was not part of the
 Commission proceeding, and as a result was not included in its notice of
 appeal or the appeal of any other party, the Board had no authority to
 consider it.  Killington relies on Environmental Board Rule 40(C), which
 states that the scope of the appeal is limited to "those reasons assigned by
 the appellant why the commission was in error unless substantial inequity or
 injustice would result from such limitation." (FN3)
      We can dispose of Killington's claim summarily.  The Board's
 conclusions rest on the effect the pond development would have on the bears'
 use of the beech trees for food and the tract of spruce and fir for travel,
 as well as on the loss of wetlands.  If we uphold the Board's conclusions
 with respect to its other habitat findings, we do not have to reach the
 wetlands issue.  We address the merits, however, because we find it
 appropriate to affirm the Board's conclusion that, based on its findings
 with respect to the wetlands, necessary wildlife habitat will be destroyed
 or significantly imperiled.
      When we reach the merits, we find no error.  On appeal from a district
 commission, the Board must "hold a de novo hearing on all findings requested
 by any party."  10 V.S.A. { 6089(a).  In a de novo proceeding, the Board is
 required to hear the matter as if there had been no prior proceedings in the
 district commission.  See In re Green Peak Estates, 154 Vt. 363, 372, 577 A.2d 676, 681 (1990).  For the Board to approve the Killington permit
 application, it was required to make affirmative findings on all Act 250
 criteria before it.  See Denio, ___ Vt. at ___, 608 A.2d  at 1170-71.  Thus,
 once the Commission denied the permit for the pond under criterion 8(A) and
 Killington appealed its ruling, the Board was required to conduct a thorough
 review of that decision and, in order to issue the permit, find that
 Killington met the requirements of the statute.
      As we have noted in other contexts, there are tensions inherent in a
 system of de novo appeal.  See In re Maple Tree Place, 156 Vt. 494, 499-
 500, 594 A.2d 404, 407 (1991).  By its rule, the Board has attempted to
 avoid unnecessary relitigation by attempting to narrow the issues before
 it.  There must be a limit to the restriction imposed by the rule.  A new
 round of evidence before the Board will inevitably shape the case somewhat
 differently from the way it appeared in the district commission.  The Board
 must be free to make common-sense rulings within the general scope of the
 notice of appeal.  Here, the notice of appeal generally attacked the
 Commission's "findings and conclusions that the project would significantly
 impair necessary wildlife habitat, would not utilize all feasible and
 reasonable means of lessening the alleged impairment, and would be a
 detriment to the public's general welfare." (FN4) There is no compelling
 indication of error by the Board in considering the effect of the loss of
 the wetlands in its criterion 8(A) review.
      Killington's third claim of error is that the Board misapprehended the
 meaning of 10 V.S.A. { 6086(8)(A), which requires the denial of a permit if
 a proposed project "will destroy or significantly imperil necessary
 wildlife habitat or any endangered species."  Before the Board, Killington
 argued that the statute must be read to allow denial only when the existence
 of a particular wildlife species is threatened by the proposed project.
 Thus, Killington contended that the Board could not deny the permit under
 criterion 8(A) because only the population of black bears which lived in or
 utilized Parker's Gore East would be affected by the pond construction, and
 the existence of black bears elsewhere in the state would be unaffected.
 The Board ruled, as it had in previous decisions, that the destruction or
 significant imperilment of the habitat of a population of wildlife triggered
 criterion 8(A) review, irrespective of whether the species as a whole was
 threatened with extinction in the state.  Since the Board's decision in the
 instant case, we have unanimously affirmed the Board's view in a case in
 which precisely this issue was presented.  In re Southview Associates, 153
 Vt. 171, 175-76, 569 A.2d 501, 503 (1989).  Killington asks that we overrule
 that decision.  We see no reason to do so.
      In Southview, we upheld the Board's denial of a permit for a
 development that would have threatened the habitat of a population of
 approximately twenty deer.  We said that "'a necessary wildlife habitat'
 under Act 250 is one that is decisive to the survival of a population of a
 particular species that depends upon the habitat."  Id. at 176, 569 A.2d  at
 503.  We are bound by Southview as a matter of stare decisis.  See Young v.
 Northern Terminals, Inc., 130 Vt. 258, 261, 290 A.2d 186, 188 (1972)
 (judicial decisions that decide questions of law are governing precedents).
 Our adherence to precedent is reinforced by the fact that the Legislature
 has met twice since the Southview decision and has not amended the statute
 in response to that decision.
      With one exception, the arguments Killington makes for a different
 construction of criterion 8(A) were considered and rejected in Southview.
 The exception is the legislative history Killington details in support of
 its position.  Although legislative history is helpful in construing a
 statute where it clearly shows the intent of the Legislature, see Harris v.
 Town of Waltham, 3 Vt. L.W. 246, 247 (May 22, 1992), the drafting history on
 which Killington relies is at best inconclusive.  It does not persuade us to
 overrule Southview.
      Finally, Killington claims that the Board's findings do not support its
 conclusions that Parker's Gore East contains necessary black bear habitat
 and that such a habitat would be destroyed or significantly imperiled by the
 pond construction and operation.  We note that Killington does not assert
 that the findings themselves are unsupported by substantial evidence, and so
 the only issue is whether they support the Board's conclusions.  See
 Southview, 153 Vt. at 178, 569 A.2d  at 504.
      Killington's attack on the Board's conclusion that the wetlands and the
 beech trees are necessary bear habitat is based on the absence of a finding
 that all the bears in Parker's Gore East would die without this habitat.  A
 similar claim was made in Southview.  Our response in that case is equally
 applicable here:
         Southview appears to argue that because the evidence did
         not prove that all the deer would perish if the project
         were completed, the project's opponents failed to prove
         that the deeryard was "necessary wildlife habitat."
         This argument again misconstrues the terms of the
         statute.  A concentrated, identifiable deeryard is
         "necessary wildlife habitat" if it is decisive to the
         survival of the white-tailed deer that use it during the
         winter -- that is, if the deer require that sort of
         habitat to survive the winter.  Of course, many of the
         individual animals might survive in another deeryard
         elsewhere in the state if the project were built; that
         fact does not render the area to be developed
         unnecessary to their survival in the sense contemplated
         by the Act.

 Id. at 177 n.3, 569 A.2d  at 504 n.3.
      Based on this understanding of the statute, the findings are ample to
 support the Board's conclusion on necessary wildlife habitat.  The Board
 detailed the importance of the wetlands as a source of food for the bears
 when they emerge from hibernation in the spring.  It concluded that because
 the bears "are dependent upon wetlands for their spring food supply" and
 there are no other wetlands in Parker's Gore East, the wetland at the pond
 site was necessary bear habitat.  Similar analysis was used with respect to
 the beech trees.
      Killington makes a related argument that the findings are inadequate to
 support the conclusion that the construction and operation of the pond will
 destroy or significantly imperil necessary wildlife habitat.  There is no
 question that the construction of the pond would eliminate or virtually
 eliminate the wetland.  The findings support the conclusion.
      Affirmed.


                                            FOR THE COURT:



                                            _____________________________
                                            Associate Justice



FN1.    These are set forth in 10 V.S.A. { 6086(a)(8)(A)(i)-(iii) as
 follows:
          (A)  Necessary wildlife habitat and endangered species.  A permit
  will not be granted if it is demonstrated by any party opposing the
 applicant that a development or subdivision will destroy or significantly
 imperil necessary wildlife habitat or any endangered species, and
        (i) the economic, social, cultural, recreational, or other
     benefit to the public from the development or subdivision will not
     outweigh the economic, environmental, or recreational loss to the
     public from the destruction or imperilment of the habitat or
     species, or
        (ii) all feasible and reasonable means of preventing or
     lessening the destruction, diminution, or imperilment of the
     habitat or species have not been or will not continue to be
     applied, or
        (iii) a reasonably acceptable alternative site is owned or
     controlled by the applicant which would allow the development or
     subdivision to fulfill its intended purpose.

FN2.     Killington has cited to no case where the participation of an
 improperly admitted party led to a new administrative hearing on the merits,
 and we have found none in this or any other jurisdiction.  Although we do
 not decide that such a remedy is inappropriate in every case, we do not see
 how it would be appropriate in this case.  Other parties now rely on the
 evidence that Shrewsbury sponsored; this evidence would be admitted in any
 new hearing unless we were to prohibit its use.  Absent such a prohibition,
 a reversal will have no effect on the evidence and will serve only to give
 Killington another chance to convince a newly constituted Board to see the
 issues Killington's way.  This appellate remedy is unconnected to the
 asserted error and therefore is inappropriate.  Nor do we consider it
 appropriate to prohibit the use of relevant evidence in a public regulatory
 process charged with determining the public interest.  Cf. In re Trust
 Estate of Flynn, 3 Vt. L. W. 135, 136 (April 17, 1992) (issues raised in
 probate court by improperly admitted parties must be considered by superior
 court on appeal).  If the applicant's only claim of prejudice is that it
 should have prevailed before an inadequately informed Board, we should not
 honor that claim.

FN3.    The provision on which Killington relies is now found in Rule 40(D).

FN4.    We are not persuaded that the wetlands issue should be excluded
 because it was not specifically mentioned in the notice of appeal and was
 not the subject of a cross-appeal.  In fact, the issue had never arisen in
 the district commission proceedings and, therefore, was not covered in the
 findings.  We assume a notice of appeal will always be drafted only to
 attack the specific findings that an appellant seeks to challenge and not to
 raise new issues.  No other party can cross-appeal with respect to issues
 that have never been raised in the district commission.  Killington's
 position would mean that new issues could never be raised in the Board even
 if directly related to the criterion on appeal.  We think this position goes
 too far.